Monday, October 3, 2016

Some Quirks re Buck v. Davis: Red/Blue/Black Briefing, Glenn Reynolds’ Driving Etiquette, and Strickland vs. “Mechanical Rules”

      Duane Edward Buck is scheduled to be killed in Texas because he is black. This is a pithy, but plausible, reading of the bizarre, race-tinged death-penalty case Buck v. Davis, due for oral argument in the U.S. Supreme Court on Wednesday, October 5th. There are some interesting quirks in the briefing, and also in some recent real-life events, not to mention relevant case precedent; discussion of said quirks may help readers understand the case better.

I. “What Color Are Your Briefs?”, or, How Petitioner’s Reply Brief May Use Colors to Clever Ends

     First off, there is an interesting quirk in the NAACP Legal Defense Fund reply brief of September 28 for petitioner Buck. Supreme Court rules say that petitioners file blue briefs at the merits stage (except for the shorter reply brief, which is yellow), and respondents file red ones, see id. R. 33(g)(v)-(vii). Occasionally a Justice may even refer to this difference from the bench: e.g., Justice Anthony Kennedy referring to the “Red Brief” in the oral argument, id. at 21, for Hollingsworth v. Perry, 133 S.Ct. 2652 (2013).

     But it’s basically unheard of, from what the present author has seen, for a brief itself to refer to “Red Briefs” and “Blue Briefs”, which would go more into mysterious legalese than most briefs do. (The lay public likely has little notion that some Court briefs are mandated to be blue, others red, and others white, orange, tan, yellow, cream, or light or dark green, see S. Ct. R. 33(g).)

     The reply brief in Buck does talk about brief color, though, passim, citing to “Blue” or “Red” briefs. (The initial petitioner’s merits brief didn’t do that.) Is this just an amusing quirk, or is it amnesia about how the usual reference is to “Petitioner’s” or “Respondent’s” briefs, not to colors?…or is it something more clever than that??

     Of course, it may just be a strange coincidence. However, seeing Petitioner’s emphasis on how bad it is to be arbitrarily punished for being Black (and the word “Black” tends to be capitalized in Petitioner’s briefs), one wonders if his lawyer is trying to make a point about colors—even a subconsciously made point, without intent to do so. Maybe by mentioning “Blue” and “Red” so often, colors of equal value which are arbitrarily assigned by the Court to denote various types of briefs and have no inherent meaning, Buck’s attorney was making the point that black, white, brown, and any other human skin colors are not something that we should be punished for, especially when the punishment is death, as in this case.

     But whether Petitioner meant us to get those thoughts from his reply brief or not, we still learn the lesson, even if it is just a “strange coincidence”, about the meaninglessness, or at least the desired meaninglessness, of skin color in human life. If we can respect blue and red as equals, then presumably we can respect black, white, and everyone else with equal justice under law.

II. Instapundit Incitement against Pedestrian Protesters? or, Living while Black Is Still Dangerous in USA

     But not everyone always respects the spirit of the law. —There is a television show called How to Get Away with Murder, starring Viola Davis as a criminal law professor implicated in covering up the murder of her husband. And now, there is famed “Instapundit” blogger and University of Tennessee law professor Glenn Reynolds, who was recently caught “tweeting” on Twitter about people protesting the fatal police-officer shooting of a black man, Keith Scott: “Run them over.” Presumably, this meant running them over with a motor vehicle, not with a large, soft pillow rolled gently over the protesters.

     Reynolds’ recommended automotive blitzkrieg fortunately did not occur (though who knows who might be “inspired” by that tweet one day?): he even apologized--after first trying to defend his tweet--, and the U. Tenn. administration decided not to punish him. Some UT law graduates are still not happy, though.

     This nasty episode supra is especially relevant to Buck v. Davis because Reynolds’ terrifying tweet shows that even law professors are capable of racially insensitive, or even de facto racist, outbursts that prima facie encourage the mass vehicular butchery of black (and other) protesters. So, then, why would it be impossible that the jury in Buck’s case also behaved irrationally and maybe condemned him to death because of the false evidence claiming black people tend towards violent crime? Like it or not, rational behavior is often a very thin lid over a cauldron of subconscious prejudices, urges, feelings, etc., which keep us from being as fair as we should be. And sometimes, the cauldron boils over.

     While it’s easy to make a punching bag of Reynolds and say, invent nicknames for him (e.g., “Instassassin”, “Killer Reynolds”, or even just “Glenn the Knife”), the time might also be well spent on increasing racial justice in this country. While, hopefully, Reynolds’ brief apparent advocacy of carrying out Nice-style terrorism on protesters against racial injustice was just a fluke, and he has maybe learned his lesson, Duane Buck is still scheduled to be killed because he is black, it seems.

     That said, if Reynolds is going largely unpunished for his appalling remarks—remarks of which all of us in the legal profession should be ashamed, since we are trained to know better than to act that way—that seemed to advocate killing protesters who have many African Americans among them, then maybe Duane Buck should not be punished by death for being black, either.

III. Strickland v. Washington: Disapproving Mechanistic Rigidity re Ineffective Assistance by Counsel

     While the death clock for Buck ticks on, there may be salvation in case law for him, though. Some helpful points to Buck are in Strickland v. Washington, 466 U.S. 668 (1984). For example, as Buck’s counsel has mentioned, see, e.g., Blue Br. at 33, Buck need not show by a preponderance of the evidence that his counsel’s errors swayed the case’s outcome, see Strickland, supra, at 694. And falsely claiming that blacks are inherently more violent than other people is hardly an insubstantially important claim, even if that claim cannot be definitely proven to have swayed the jury.

     Another point from Strickland, which might be useful to mention in Wednesday’s oral argument or elsewhere, is that mere “mechanical” application of rules in situations like Buck’s may be a bad idea:

Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. . . . the ultimate focus of inquiry must be on the fundamental fairness of the proceeding[.]
Id. at 696 (O’Connor, J.). So, emphasizing that mere “mechanical” rigidity must not defeat “fundamental fairness” in Buck’s case may be crucial. (O'Connor was not being “quirky” per se in Strickland, but she recognized that reality has quirks or unusual points that may not be justly treated by using needlessly rigid procedures.)

     E.g., there may be overly-rigid arguments for denying Buck relief, such as the argument that of eleven facts Buck put forward to show how extraordinary his case is, see, e.g., Blue Br. at 47, and achieve relief under Federal Rule of Civil Procedure 60(b)(6), none of the facts individually is enough to show “extraordinariness”. But what about the holistic aggregation of all 11 facts together? Could that gestalt prove extraordinariness? It well may.

     Similarly, a realistic consideration of the bizarreness of the case as a whole (absurd racism, broken promises by the Texas Attorney General’s office, etc.) should preclude any overly mechanistic application of rules, see Strickland at 696, that might prevent relief for Buck.

IV. Conclusion: Texas’ Case May Be on Death Row—Which Is Good for the United States

     Then again, petitioner Buck may not have as hard a struggle as one might imagine. Buck has six amicus briefs on his side at the merits stage—including one by the present author—; interestingly, Texas has zero amicus briefs on its side. This says a lot of what needs to be said about the legitimacy of Texas’ case. It is, and should be, a pretty hard row to hoe to defend executing someone using absurd ““evidence”” that “blackness equals violence”.

     On that note, it’s somewhat odd that the U.S. Department of Justice is nowhere to be seen in this case, this case of flagrant racialized abuse of someone in the criminal justice system. Some activists claim the Obama administration hasn’t done enough for black people, and they might be able to adduce the DOJ’s mysterious absence from the Buck case as evidence. One hopes that in similar cases in the future, the federal government might take notice and act.

     That’s especially so because there’s an important national interest besides racial justice inside the U.S.: i.e., the foreign-policy implications of the case. If Buck is executed because he is black, then how can we complain when other nations execute people under suspicious circumstances? such as religiously-tinged executions like those in Saudi Arabia? “A decent respect to the opinions of [hu]mankind”, as the Declaration of Independence put it, not just respect for ourselves, would seem to support Petitioner’s case here. Cf. John Donne, “Any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.”

     After all, America is famed throughout the world for having nothing against quirks and the freedom to be quirky; but there are good quirks, and there are bad quirks. And refusing legal relief to Duane Buck is the deadly and unjust kind of quirk that America, and the rest of the world, can’t afford.

(Cross-posted, with edits, from Casetext)

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