CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 15–8049. Argued October 5, 2016—Decided February 22, 2017
Whew. Nothing like being torpedoed by your own trial counsel.A Texas jury convicted petitioner Duane Buck of capital murder. Under state law, the jury could impose a death sentence only if it found that Buck was likely to commit acts of violence in the future. Buck’s attorney called a psychologist to offer his opinion on that issue. The psychologist testified that Buck probably would not engage in violent conduct. But he also stated that one of the factors pertinent in assessing a person’s propensity for violence was his race, and that Buck was statistically more likely to act violently because he is black. The jury sentenced Buck to death.
Buck contends that his attorney’s introduction of this evidence violated his Sixth Amendment right to the effective assistance of counsel. ...
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Strickland’s first prong sets a high bar. A defense lawyer navigating a criminal proceeding faces any number of choices about how best to make a client’s case. The lawyer has discharged his constitutional responsibility so long as his decisions fall within the “wide range of professionally competent assistance.” Id., at 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674. It is only when the lawyer’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment” that Strickland’s first prong is satisfied. Id., at 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
The District Court determined that, in this case, counsel’s performance fell outside the bounds of competent representation. We agree. Counsel knew that Dr. Quijano’s report reflected the view that Buck’s race disproportionately predisposed him to violent conduct; he also knew that the principal point of dispute during the trial’s penalty phase was whether Buck was likely to act violently in the future. Counsel nevertheless (1) called Dr. Quijano to the stand; (2) specifically elicited testimony about the connection between Buck’s race and the likelihood of future violence; and (3) put into evidence Dr. Quijano’s expert report that stated, in reference to factors bearing on future dangerousness, “Race. Black: Increased probability.” App. 19a, 145a-146a.
Given that the jury had to make a finding of future dangerousness before it could impose a death sentence, Dr. Quijano’s report said, in effect, that the color of Buck’s skin made him more deserving of execution. It would be patently unconstitutional for a state to argue that a defendant is liable to be a future danger because of his race. See Zant v. Stephens, 462 U. S. 862, 885, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) (identifying race among factors that are “constitutionally impermissible or totally irrelevant to the sentencing process”). No competent defense attorney would introduce such evidence about his own client. See Buck v. Thaler, 565 U. S., at 1022, 132 S. Ct. 32, 181 L. Ed. 2d 411 (statement of Alito, J., joined by Scalia and Breyer, JJ., respecting denial of certiorari) (Buck’s case “concerns bizarre and objectionable testimony”).
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Dr. Quijano testified on the key point at issue in Buck’s sentencing. True, the jury was asked to decide two issues—whether Buck was likely to be a future danger, and, if so, whether mitigating circumstances nevertheless justified a sentence of life imprisonment. But the focus of the proceeding was on the first question. Much of the penalty phase testimony was directed to future dangerousness, as were the summations for both sides. The jury, consistent with the focus of the parties, asked during deliberations to see the expert reports on dangerousness. See App. 187a-196a, 198a-203a, 209a.
Deciding the key issue of Buck’s dangerousness involved an unusual inquiry. The jurors were not asked to determine a historical fact concerning Buck’s conduct, but to render a predictive judgment inevitably entailing a degree of speculation. Buck, all agreed, had committed acts of terrible violence. Would he do so again?
Buck’s prior violent acts had occurred outside of prison, and within the context of romantic relationships with women. If the jury did not impose a death sentence, Buck would be sentenced to life in prison, and no such romantic relationship would be likely to arise. A jury could conclude that those changes would minimize the prospect of future dangerousness.
But one thing would never change: the color of Buck’s skin. Buck would always be black. And according to Dr. Quijano, that immutable characteristic carried with it an “increased probability” of future violence. Id., at 19a. Here was hard statistical evidence—from an expert—to guide an otherwise speculative inquiry.
And it was potent evidence. Dr. Quijano’s testimony appealed to a powerful racial stereotype—that of black men as “violence prone.” Turner v. Murray, 476 U. S. 28, 35, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986) (plurality opinion). In combination with the substance of the jury’s inquiry, this created something of a perfect storm. 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.
