I never got a chance to write something up about the cert. denial in Buck v. Thaler from earlier in the week. Alito issued a statement respecting the denial of cert. (joined by Scalia and Breyer) and Sotomayor dissented from the denial of cert. (joined by Kagan).
This case made news a few weeks ago since the Court had granted a stay of execution. While some people predicted that this meant that the Court would grant cert., I reviewed the lower court's decisions and came to the conclusion that there was not really a chance for cert. I believed that there were too many procedural problems with the case and the only issue up for review would be whether or not the Fifth Circuit was wrong in denying a COA. Alito's statement and Sotomayor's dissent showed that there were many reasons to feel uncomfortable about this case. But in the end, the procedural problems were the reason why cert. was denied.
Buck was an interesting situation. A defense expert at the capital sentencing proceeding testified, essentially, that African-Americans pose a greater risk for future dangerousness. This same expert had testified in five other cases to the same thing. In those cases, the State of Texas agreed to new sentencing proceedings. Buck was the only case in which they did not. The difference between Buck and these other cases was that the defense not only called the expert (the defense had called the expert in two other cases), but the defense actually elicited the offensive race-based comment and submitted a report with the same information. Of course, this does not justify the State's actions. The State should not want to keep a death penalty in place where the sentencing proceeding had such racial overtones, regardless of how that evidence came in. But it could be logically asserted that it was not the State's fault.
In response to the habeas petition arguing that the expert's testimony was improper, the State argued that the claim was procedurally defaulted. provided the district court with concluded that this particular challenge was procedurally defaulted. In its papers, the State gave various reasons why it treated Buck different from the other five defendants. However, the State's explanations were not consistent with the actual facts of the other cases. Whether it was incompetence or misconduct, it's hard to know. As shown above, the State did have a logical path to say that Buck was different. They just didn't follow it.
After the district court concluded that the claim was procedurally defaulted and denied the petition, the defense subsequently learned that the State inaccurately described the differences between Buck's case and the other five cases. The defense filed a motion for reconsideration, accusing the State of misrepresenting these facts. The district court denied the motion and the Fifth Circuit denied a COA.
And now the Supreme Court has denied cert. Alito described the expert's testimony as "bizarre and objectionable." However, the State had legitimate reasons for treating Buck differently. Although the State got it wrong as to why Buck was different, the district court had the facts of the other cases at its disposal.
In her dissent, Sotomayor had a powerful opening paragraph as to why cert. should be granted:
Today the Court denies review of a death sentence marred by racial overtones and a record compromised bymisleading remarks and omissions made by the State of Texas in the federal habeas proceedings below. Because our criminal justice system should not tolerate either circumstance—especially in a capital case—I dissent andvote to grant the petition.
Sotomayor points out that it doesn't matter how the evidence came in, it just shouldn't have been considered.
I know that this is pretty wishy washy, but I kind of feel that both Alito and Sotomayor are right, at least at the core of what each of them were saying. Alito was right - the claim was procedurally defaulted and the State had a logical reason to treat Buck differently. But Sotomayor was right - the State should put fairness above all other considerations and should not act the way that it did in the habeas proceedings. Unfortunately, the State's failure to act justly did not provide a ground for Supreme Court review. It really was up to the State to make this right and it chose to allow Buck's death sentence to stand despite the racial overtones at sentencing.
It's shameful, but the habeas procedural rules stand in the way of granting cert.