Duane Buck’s death penalty case raises a pressing issue of national importance: whether and to what extent the criminal justice system tolerates racial bias and discrimination. Specifically, did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court’s precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?
Certificates of appealability are, of course, not a concern for the state court practitioner; nor is the federal civil rule governing reopening of final judgments (particularly as our supreme court has held the state analogue, Wis. Stat. § 806.07(g) and (h), not available to challenge a conviction or sentence, State v. Henley, 2010 WI 97, 328 Wis. 2d 544, 787 N.W.2d 350). So the resolution of the narrow issue that SCOTUS has accepted–basically, whether the Fifth Circuit was too stingy in preventing Buck from appealing the denial of his motion to reopen his federal habeas claim–is unlikely to have much impact on the Wisconsin criminal justice system.
The case may have more significance as another look at the role race plays in the courtroom. Particularly with respect to sentencing, and even more particularly where ideas about racial characteristics are embedded in purportedly “scientific” or statistical claims. In Buck’s case, the “defense expert” opined that Buck’s blackness increased his likelihood of future violence based on “an over-representation of Blacks among the violent offenders.” Closer to home, our supreme court is considering, in State v. Loomis, the sentencing use of COMPAS, which as we’ve previously noted has been found to have “significant racial disparities” as to which defendants it identifies as dangerous. (The Wall Street Journal has recently taken note of Loomis; Sentencing Law and Policy has an enlightening excerpt of the article.) In a previous denial of certiorari, five SCOTUS justices found the testimony in Buck’s case should not have been allowed; we’ll soon see what SCOW thinks of COMPAS’s racial disparities.