December 01, 2016

Preview of Pending Cases

Buck v. Davis

On October 5, 2016, the Supreme Court heard oral arguments in Buck v. Davis. Duane Buck was convicted of murder and sentenced to death in May of 1997. Under Texas law, the prosecution must show that the defendant poses a future danger to the community before the court can impose the death penalty. During the sentencing phase of trial, defense counsel called a psychologist who testified that Mr. Buck would pose a greater future danger because he is black. This psychologist testified in five other trials where African American defendants were sentenced to death. All have been granted new sentencing hearings except for Mr. Buck.

During oral arguments, Mr. Buck’s attorney, Christina Swarns, asserted that the psychologist’s testimony “not only prejudiced Mr. Buck at sentencing, [but] it also put the very integrity of the courts in jeopardy.” Texas Solicitor General Scott Keller argued that while defense counsel’s presentation of the testimony was “not okay,” it did not prejudice the jury. The Court questioned Mr. Keller and Ms. Swarns about the Fifth Circuit Court of Appeals’ repeated denial of requests for appellate review that are known as Certificates of Appealability (“COA”). The Fifth Circuit has refused to grant 59% of COAs over the last five years. In comparison, the Eleventh Circuit denied only 6.25% of COAs and the Fourth Circuit denied none during the same window of time. Ms. Swarns argued that the data combined with the extraordinary circumstances of the racial bias in Mr. Buck’s case clearly demonstrated that the Fifth Circuit is in need of the Court’s guidance on when to grant a COA.

All seven justices who spoke during oral arguments appeared to agree that the introduction of race-related testimony was “indefensible.”

Moore v. Texas

On June 6, 2016, the Court granted certiorari in Moore v. Texas, a case challenging Texas’s standards for determining intellectual disability. According to Mr. Moore, Texas has rejected the consensus of the scientific community about the assessment of intellectual disability in violation of the Supreme Court’s decisions in Atkins v. Virginia and Hall v. Florida that outlawed the execution of intellectually disabled prisoners. The Texas courts have adopted standards for determining intellectual disability, known as the “Briseño Factors,” that are based largely on inaccurate stereotypes of individuals with intellectual disability.

Almost 30 years ago, the ABA adopted as policy that no person classified as “mentally retarded” under the definition by the American Association on Mental Retardation should be sentenced to death or executed. From 2003 to 2013, the ABA conducted extensive research on the death penalty process in twelve states, including Texas. The ABA’s research indicated that Texas’s standards do not comply with clinical standards and instead rely on “popular misconceptions regarding how persons with mental retardation behave” and stereotypes from popular fiction. The Texas courts have specifically cited to the fictional character Lennie Small from John Steinbeck’s Of Mice and Men as the benchmark level of disability that would exempt a person from the death penalty, rather than relying on scientifically accepted factors such as IQ scores and adaptive deficits.

In addition to the comprehensive research that the ABA has completed in this area, the ABA also filed an amicus curiae brief in support of Mr. Moore in August 2016. The brief, which was referenced during oral arguments on November 29, 2016, asked the Court to require Texas to adopt standards that comport with those used in the medical and psychiatric communities. Mr. Moore is represented by pro bono counsel from Skadden, Arps LLP.