Stephen Bright: The punishment for having a bad lawyer shouldn't be the death penalty

Guardian 

A deeply troubling truth about the death penalty is that it is often handed down not to people who commit the worst crimes, but on those assigned the worst lawyer to represent them. Buck v Davis, a Texas case that will be argued before the US supreme court on 5 October, offers an extreme example of just how deadly bad lawyering can be.

Duane Buck was charged with capital murder in Houston, Texas, in 1997. He was too poor to hire his own lawyer so the judge appointed two lawyers to defend him, one of whom has such an abysmal record in capital cases that the New York Times called him: “A Lawyer Known Best for Losing Capital Cases”. His performance in Mr Buck’s was consistent with this record.

In order for a death sentence to be imposed, Texas law requires the prosecutor to prove, and the jury to unanimously find, that the defendant is likely to be dangerous in the future. In Mr Buck’s case, future dangerousness was the central disputed issue at sentencing. The prosecutors did not have a strong case that Mr Buck would be a danger in the future. Indeed, the evidence showed that Mr Buck was not likely to not pose a danger while in prison. But the court-appointed defense lawyers, with Mr Buck’s life on the line, handed the prosecutors powerful evidence for sentencing him to death: Mr Buck was more likely to be dangerous because he is black.

That was the conclusion of a psychologist the defense lawyers retained as an expert. The psychologist prepared a report stating that being “black” is a “statistical factor” that created an “increased probability” that Mr Buck would commit criminal acts of violence in the future. The lawyers appointed to represent Mr Buck called the expert to the witness stand, elicited his testimony that Mr Buck was more likely to be dangerous because he is black, and moved the expert’s report into evidence.

On cross-examination, the prosecutor emphasized the relationship between race and future dangerousness, asking the psychologist if “the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” “Yes,” the psychologist answered, confirming a pernicious – and false – stereotype about black men and criminality. The court-appointed lawyers did not object. The judge said nothing. The jurors, after lengthy deliberations, during which they asked for – and received – a copy of the psychologist’s report, found Mr Buck a future danger. He was sentenced to death.

The presentation of the psychologist’s expert testimony was egregious and inexcusable incompetence on the part of Mr Buck’s court-appointed lawyers. And it is the focus of Mr Buck’s claim before the supreme court that his “trial counsel was constitutionally ineffective”. The lawyers had the psychologist’s report mentioning race as a factor in their possession before they called him to testify. The psychologist had testified in other cases before Mr Buck’s trial that race increases the probability of future dangerousness.

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