From Texas, Two Dubious Death Cases for Justices

      Where would the Supreme Court find work but for Texas? The Lone Star state provided four of the biggest cases for the current term on such hot-button issues as abortion, affirmative action, immigration, and voting rights.
      One justice shy of a full complement, the court seems to be very slow in lining up cases for the term that will begin a few months from now on the traditional First Monday in October. But last week [June 6] the justices dug deep into a backlog of petitions to grant review in two death penalty cases from Texas (Buck v. Stephens; Moore v. Texas).
      Texas has been one of the leading states in death penalty cases for years and these two, like so many from Texas, seem strong candidates for reversal. In one, Texas’s Court of Criminal Appeals insisted on using an outdated standard for judging a death row inmate’s claim of intellectual disability instead of the standard adopted by the Supreme Court in 2014. In the other, the federal appeals court for Texas refused to let a death row inmate challenge the use of race-based testimony in his penalty-phase hearing.
      Duane Buck and Bobby James Moore are two of the 263 inmates currently on Texas’s death row. Lawyers from the Texas attorney general’s office have plenty of experience pulling out all stops to defend dubious death sentences — for example, in a notorious case from Houston where the defense lawyer slept during parts of the trial. These two cases stand out because doubts about their validity emerged at the state level long before they reached the U.S. Supreme Court.
      Buck was convicted of killing his former girlfriend and her male friend in 1995 and sentenced to death after a penalty-phase hearing that focused on the issue of future dangerousness. Psychologist Walter Quijano testified as a defense witness that Buck, who is African American, was unlikely to pose a future threat because the crime was not a random act of violence. On cross-examination, however, Quijano agreed with a prosecutor’s question that race, specifically being black, increases future dangerousness.
      As Austin’s American-Statesman recounts, the state attorney general’s office under now-Sen. John Cornyn had confessed error in half a dozen cases where Quijano had linked dangerousness to race while testifying for the prosecution. In Buck’s case, however, the state contends that the defense bears the onus for the race-based testimony because Buck’s own lawyer put him on the stand. The Fifth U.S. Circuit Court of Appeals refused to let Buck’s new lawyers reopen the case on the grounds of constitutionally ineffective representation at trial.
      Moore has spent 35 years on death row after his conviction for killing a store clerk during a robbery in 1980. He is seeking to take advantage of a pair of Supreme Court decisions. The court in 2002 barred execution of defendants with what is now called “intellectual disability” (Virginia v. Atkins) and then in 2014 prohibited states from using a fixed IQ test score to determine the issue (Hall v. Florida).
      A trial court found Moore intellectually disabled and thus ineligible for execution, but the Texas Court of Criminal Appeals — the state’s highest court for criminal cases — ruled that the lower court should have used the standard set out by the legislature back in 1992. Moore’s lawyers, backed by psychiatric and human rights organizations, argue that the use of outdated standards violates the Constitution.
      The justices have been slow to add cases for the coming term ever since Justice Antonin Scalia’s death in February. The Texas cases bring the number granted review so far to 13, much lower than usual at this time of the year. Arguments are likely in November in front of a court with one seat still vacant barring any change of heart by Senate Republicans to act on President Obama’s nomination of federal judge Merrick Garland to fill the seat.
      The Supreme Court’s current term has been a favorable one for critics of the death penalty with only one exception. In what proved to be his final opinion for the court, Scalia wrote the 8-1 decision in Kansas v. Carr upholding death sentences for two Kansas brothers in the so-called Wichita Massacre and for a third defendant in a separate Kansas case. Justice Sonia Sotomayor was the lone dissenter.
      A week earlier, however, the court in Hurst v. Florida struck down Florida’s previous death-penalty system because it allowed judges, instead of juries, to make factual findings necessary to impose a death sentence. Sotomayor wrote the decision, with Justice Samuel A. Alito Jr. the lone dissenter. Sotomayor had previously criticized Alabama for allowing judges in capital cases to overturn a jury’s recommendation not to impose a death sentence. In May the court sent an Alabama death case, Johnson v. Alabama, back to the state court to consider whether Hurst applies.
      Later in May, the court threw out, on a 7-1 vote, a Georgia death sentence because prosecutors had used peremptory challenges to keep blacks off the jury (Foster v. Chatham). And last week [June 9] the court gave a Pennsylvania death row inmate a new chance to challenge his death sentence because the state’s chief justice had refused to step out of the case despite his role as district attorney decades earlier in deciding to seek the death penalty (Williams v. Pennsylvania).
      None of these decisions suggests the court is on the verge of abolishing capital punishment, as Justices Stephen G. Breyer and Ruth Bader Ginsburg argued in dissent last term. Even with a conservative orientation, however, the court gives death penalty cases some extra scrutiny — an unfavorable omen for the so-called great state of Texas in the coming term.