Amicus Curiae Brief — Buck v. Stephens, 136 S. Ct. 2409 (2016) (No. 15-8049)

No. 15-8049

IN THE

Supreme Court of the United States

DUANE EDUARD BUCK,

Petitioner,

V.

LORIE DAvis, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF FORMER PROSECUTORS

AS AMICI CURIAE IN SUPPORT OF

PETITIONER

RANDALL W. JACKSON MICHAEL J. GOTTLIEB

JOANNA C. WRIGHT Counsel of Record

BRET R. VALLACHER BOIES, SCHILLER

BOIES, SCHILLER & FLEXNER LLP

& FLEXNER LLP 5301 Wisconsin Ave., NW

575 Lexington Avenue Washington, DC 20015

New York, NY 10002 Phone: (202) 237-2727

MGottlieb@bsfllp.com

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . iii

INTEREST OF AMICI CURIAE EEE... 1

SUMMARY OF ARGUMENT. . .. 2

e ————————— 3

I. IN CONCEDI NG ERROR, ATTORNEY GENERAL

CORNYN APPROPRIATELY DISCHARGED HIS

Duty TO REMEDY UNCONSTITUTIONAL

4 e oc ccccccccccccccecccccccocccss 3

A. The Prosecutor in Petitioner’s Sentencing

Hearing Improperly Elicited Testimony

that Petitioner Was More Likely to Re-

Offend Because of His Race...................... 4

B. Attorney General Cornyn Appropriately

Decided to Concede Error in Petitioner's

Sentencing Hearing. .. . . . . 11

II. TEXAS’ DECISION TO RENEGE ON ITS PROMISE

Nor TO OPPOSE PETITIONER’S REQUEST FOR A

NEW SENTENCE UNDERMINES THE INTEGRITY

. ner 14

A. The Decision to Reverse Attorney General

Cornyn’s Promise is Inconsistent with

I cll 15

B. The Texas Attorney General’s Decision to

Reverse the Position of his Predecessor

Violated the Public Trust in Evenhanded

Administration of Justice ....................... 17

1

C. Texas’ Decision Results in Arbitrary and

, ̃ SLATER AOE

ili

TABLE OF AUTHORITIES

Cases

Breed v. Jones,

, a oe 24

Bruton b. United States,

, . 7

Buck v. Stephens,

623 F. App’x 668 (5th Cir. 2015) 4, 5, 22

Buck v. Stephens,

No. 4:04-cv-03965 (S.D. Tex. June 24, 2005).5

Buck v. Stephens, No. 4:04-cv-03965 (S.D. Tex.

e moxcioncasioacioke 22

Buck v. Thaler, )

Z 17, 22

Buck v. Thaler,

345 F App’x 923 (5th Cir. 2009).................. 15

Buck v. Thaler, 452 F App’x 423 (5th Cir.

17 —A—A— Ä 21

Buckley v. Fitzsimmons,

, SR yee we ee 8

Connick v. Thompson,

I i 8, 11

DeGarmo v. Texas,

e i 23

Imbler v. Pachtman,

D 9

iv

Kyles v. Whitley,

514 U.S. 419 (1995) . .. . . . 18

Powers v. Ohio,

4BO UB. 400 (1GB1) .....00ccrcrccrrcvccscccccccccrerrseees 7

Roper v. Weaver,

550 U.S. 598 (2007) . . . . . . 21

Rose v. Mitchell, 443 U.S. 545 (1979) . . .. 6

Saldamo v. Texas,

BSH UB. IBIS 000. eee passim

Santobello v. New York,

404 U.S. 287 (1971) . . . 19, 20

Turner v. Murray,

476 UB. 60. . . 7

United States v. Armstrong, 517 U.S. 456

United States v. Chavez,

416 U.S. 580 (1970 . . . . . . . . 24

United States v. Hasting,

4681 U.S. (0. . . . 18

United States v. Webster,

162 F.3d 308 (5th Cir. 1998) 7

United States v. Williams,

BOS UB. sa. . 16

Welch v. United States,

196 8. Ce. 1387 010. 23

Zant v. Stephens,

D, 4

Statutes

Tex. Code Crim. Proc. Ann. art. 37.071, § 2

(West 1981 and Supp. 1993))))))))᷑᷑ „ 6

Other Authorities

Eric J. Holder Jr., Attorney General,

Memorandum to All Federal Prosecutors,

Department Policy on Charging and

Sentencing (May 19, 2010) 19

John Cornyn, Attorney General, Statement

Regarding Death Penalty Cases, Office of the

Attorney General News Release (June 9,

—0—T 12, 13, 14, 21

National District Att'ys Assn., National

Prosecution Standards (2d ed. 1991)..8, 9, 10,

16

National District Att’ys Assn., National

Prosecution Standards with Revised

Commentary (3d ed. 2009)................... passim

Press Release, Office of the Tex. Att’y Gen.

D aan indciscieriendgbahiaddnaganioauenions 13

Press Release, Office of the Tex. Att’y Gen.,

U.S. Supreme Court Grants State’s Motion in

Capital Case (June 5, 2000) 12

Robert H. Jackson, Attorney General, The

Federal Prosecutor, Address at the Second

vi

Annual Conference of United States

Attorneys (Apr. 1, 1900). . . e e 16

Roberta K. Flowers,

What You See Is What You Get: Applying the

Appearance of Impropriety Standard to

Prosecutors Appearances to the Mind Are of

Four Kinds. Things Either Are What They

Appear to Be; or They Neither Are, Nor

Appear to Be, 63 Mo. L. Rev. 699 (1998) .....20

U.S. Dep’t Of Justice,

United States Attorneys’ Manual 9-27.130

eee 20

1

INTEREST OF AMICI CURIAE!

Amici are former state and federal prosecutors,

including former attorney generals, who were

responsible for the enforcement of federal and state

criminal laws. Amici represent a wide range of

political affiliations and views on capital

punishment. All amici agree, however, that where

the State imposes a capital sentence, there is a

solemn duty to ensure that the sentencing hearing is

conducted in compliance with both prosecutorial

ethics and all fundamental constitutional

guarantees afforded to criminal defendants. As

former law enforcement officials, amici have a strong

interest in ensuring that no capital sentence is

imposed where a failure of prosecutorial ethics has

permitted a sentencing determination to be

influenced by a defendant’s race. Amici also believe

that public faith in the independence of law

enforcement requires adherence to the promises that

prosecutors make to defendants. The failure to live

by such promises to a capital defendant, in

particular, constitutes an extraordinary departure

from the ethical conduct that the public expects and

deserves.

! Pursuant to Supreme Court Rule 37.3(a), all parties have

consented to the filing of this brief. Pursuant to Rule 37.6, amici

certify that no counsel for a party authored this brief in whole

or in part, and no persons other than amici curiae or their

counsel made a monetary contribution to its preparation or

submission.

2

SUMMARY OF ARGUMENT

Prosecutors in our criminal justice system are

tasked with a special obligation: prosecutors must

seek justice, not just convictions, even when that

duty requires foregoing or overturning a conviction

in order to protect a defendant’s constitutional

rights. Among the most important of those rights is

the constitutional assurance that no defendant's

sentence will be determined based upon race. In no

context is this obligation more important than in

capital cases, where the state seeks to impose the

ultimate penalty.

This is an extraordinary case that calls for

extraordinary relief. The State of Texas learned that

a particular expert witness, Dr. Walter Quijano, had

offered racially-biased testimony in a number of

death penalty cases. Specifically, Dr. Quijano’s

modus operandi was to argue that a defendant's

future dangerousness could be predicted, at least in

part, by the defendant’s race. Upon reviewing these

cases, the Attorney General of Texas at the time,

John Cornyn, determined that Dr. Quijano’s

testimony was forbidden by the U.S. Constitution,

and that no death sentence should be permitted to

stand if the jury was exposed to this testimony. But

when Attorney General Cornyn left office, his

successor reversed course with respect to

Petitioner—and Petitioner alone.

The intial decision made by Attorney Genera!

Cornyn to concede error represents the highest

ideals with regard to prosecutorial ethics and

demonstrates a prosecutor’s most serious obligations

to uphold these ethics. The decision of his successor

to reverse course, on the basis of a specious

3

distinction, is at odds with the ideals to which

prosecutors should aspire and the obligations to

which a prosecutor must adhere. In short, no

execution should turn upon a distinction as arbitrary

as the one offered in this case.

It is true, of course, that the expert testimony at

issue in this case was first introduced by the defense,

but that tells only part of the story. Texas ignores

that following Dr. Quijano’s direct examination, the

prosecutor compounded defense counsel’s error by

eliciting additional testimony from Dr. Quijano that

Petitioner's race made him more dangerous. The

prosecutor then returned to that testimony, and

expanded the constitutional error, in her closing

argument. And even that fact fails to distinguish

Petitioner's case from others that have been

reversed.

Our Constitution, as well as the integrity of our

criminal justice system, requires more from our

prosecutors than Respondents have offered here.

This case is indeed extraordinary, and further

judicial review is warranted. This Court should find

that the Fifth Circuit erred in denying Petitioner a

certificate of appealability.

ARGUMENT

I. IN CONCEDING ERROR, ATTORNEY

GENERAL CORNYN APPROPRIATELY

DISCHARGED HIS DUTY TO REMEDY

UNCONSTITUTIONAL

PROSECUTORIAL CONDUCT T

Attorney General Cornyn correctly concluded

that Petitioner’s sentence of death could not be

permitted to stand given that it was indisputably

based, at least in part, on improper testimony that

4

Petitioner would be more dangerous in the future

because he was black. The decision to acknowledge

this error was in the best and most important

traditions of law enforcement. It was, moreover,

consistent with the Attorney General’s duty to

remedy a plain violation of a defendant's

constitutional rights.

A. The Prosecutor in Petitioner's

Sentencing Hearing Improperly Elicited

Testimony that Petitioner Was More

Likely to Re-Offend Because of His Race

Prosecutors must eschew racist testimony, not

elicit it. Respondents apparently agree, arguing that

“it is always inappropriate for the State to ask jurors

to consider a defendant’s race when assessing guilt

or imposing punishment, but in Buck’s case that is

not what happened.” Br. for Resp't in Opp'n to Pet.

for a Writ of Cert. at ii, Buck v. Stephens, No. 15-

8049 (Mar. 21, 2016). That sentence’s first

declaration is correct, but its conclusion is not. The

record below demonstrates that the prosecutor,

having just witnessed the expert witness’ improper

testimony using race to forecast future

dangerousness, returned to that testimony and

highlighted the expert's constitutionally-

impermissible opinion.

The issue of race initially arose in Petitioner's

case when Dr. Quijano testified, as a witness for the

defense on direct examination, that Petitioner’s race

increased the probability that he would be

dangerous in the future. Although race cannot be

considered as an aggravating factor at capital

sentencing, e.g., Zant v. Stephens, 462 U.S. 862, 885

(1983), Dr. Quijano’s opinion urged the jurors to do

5

just that. Dr. Quijano’s opinion apparently stemmed

from his view that African Americans are “over

represented in the Criminal Justice System. Tr. of

Sentencing Hr'g (“Tr.”) at 111:1-4, May 6, 1997,

Buck, No. 4:04-cv-03965 (S.D. Tex. June 24, 2005),

ECF No. 5-114. Dr. Quijano’s Expert Report, which

was submitted as a defense exhibit, stated in

unequivocal terms: “Race. Black. Increased

Probability [of future dangerousness].” Forensic

Psychological Evaluation at 7, Buck v. Stephens, No.

4:04-cv-0396565 (S.D. Tex. June 24, 2005), ECF No.

5-118, p. 24.

The constitutionally deficient portion of Dr.

Quijano’s testimony did not stop at his direct

examination because the prosecutor compounded

the error on cross-examination. Specifically, the

prosecutor returned to and highlighted Dr. Quijano’s

racially-charged testimony by asking: “You have

determined that the race factor, black, increases

the future dangerousness for various complicated

reasons; is that correct?” Tr. at 160:8-15, ECF No. 5-

115, p. 17 Dr. Quijano responded: “Yes.” Jd. Having

read Dr. Quijano’s expert report, and having just

heard Dr. Quijano’s testimony on direct

examination, the prosecutor knew that Dr. Quijano

would reply in the affirmative. Thus,

notwithstanding that defense counsel first

introduced the offensive testimony, it is not seriously

in dispute that the prosecutor intentionally elicited

testimony from the same expert that Petitioner's

race made him more dangerous.

The prosecutor made matters worse in her

closing argument. There, the prosecutor

unequivocally endorsed the offensive testimony by

urging the jury to rely upon Dr. Quijano’s testimony

6

when determining if Petitioner was likely to commit

a violent offense in the future. Tr. at 260:13-21, ECF

No. 5-117 (“You heard from Dr. Quijano, who had a

lot of experience in the Texas Department of

Corrections, who told you that there was a

probability that the man would commit future acts

of violence.”). In order to issue a judgment imposing

the death penalty, the jury was required to agree

unanimously that Petitioner was dangerous as a

result of his propensity to commit violent acts. See

Tex. Code Crim. Proc. Ann. art. 37.071, § 2 (West

1981 and Supp. 1993). By referencing Dr. Quijano’s

testimony in her closing, the prosecutor encouraged

the jury to consider Petitioner's race when

evaluating dangerousness, and consequently

ensured that racist assumptions regarding

dangerousness were before the jury as it proceeded

to deliberate.

Injecting racial bias into a criminal trial offends

the constitutional constraints that limit the exercise

of prosecutorial discretion. Such constraints include

the “equal protection component of the Due Process

Clause of the Fifth Amendment,” which precludes a

prosecutor from making enforcement decisions

based upon “an unjustifiable standard such as race,

religion, or other arbitrary classification.” United

States v. Armstrong, 517 U.S. 456, 464 (1996); cf.

Rose v. Mitchell, 443 U.S. 545, 563 (1979) (“The

claim that the court has discriminated on the basis

of race in a given case brings the integrity of the

judicial system into direct question.”); id. at 555

(“Discrimination on the basis of race, odious in all

respects, is especially pernicious in the

administration of justice.”). This kind of testimony

deprives the defendant of his fundamental right to a

7

fair trial, i.e., one in which the “jury consider|s] only

relevant and competent evidence,” Bruton v. United

States, 391 U.S. 123, 131 n.6 (1968), “free from

ethnic, racial, or political prejudice, or predisposition

about the defendant’s culpability,” Powers v. Ohio,

499 U.S. 400, 411 (1991) (citations omitted).

Strict adherence to prosecutorial ethics is

important in every case, but even more so in capital

cases. The death penalty, of course, is the most grave

sanction our justice system recognizes. The severity

and permanence of the sanction imposes special

obligations upon those who participate in its

administration to ensure that the jury exercises its

discretion in an appropriate manner. See Turner v.

Murray, 476 U.S. 28, 35 (1986) (plurality opinion)

(“Because of the range of discretion entrusted to a

jury in a capital sentencing hearing, there is a

unique opportunity for racial prejudice to operate

but remain undetected.”). Among those obligations

are the requirements to seek application of the

penalty with impartiality, integrity, and objectivity,

all of which forbid reliance on racial bias or

prejudice. See, e.g., United States v. Webster, 162

F.3d 308, 356 (5th Cir. 1998) (recognizing that “a

long line of Supreme Court precedent admonishes

that the guillotine must be as colorblind as is the

Constitution”) (citations omitted). This is

particularly so when future dangerousness is at

issue: Fear of blacks, which could easily be stirred

up by the violent facts of [a] crime, might incline a

juror to favor the death penalty.” Murray, 476 U.S.

at 35.

Encouraging testimony like Dr. Quijano’s

violates the National Prosecution Standards

published by the National District Attorneys

8

Association, which are “intended to be guides for

prosecutors” in the “day-to-day performance of the

prosecution function.” National District Att’ys Assn.,

National Prosecution Standards with Revised

Commentary at 1 (3d ed. 2009) (“NPS”). This Court

has recognized the authoritative role the National

Prosecution Standards possess and has relied upon

them to determine what public acts are an “integral

part of a prosecutor’s job.” Buckley v. Fitzsimmons,

509 U.S. 259, 278 (1993). Under those standards, the

prosecutor’s “Primary Responsibility” is to serve as

an “independent administrator of justice” and “to

seek justice, which can only be achieved by the

representation and presentation of the truth.” NPS

1-1.1.2 Prosecutors must uphold their “special duty

to seek justice, not merely to convict.” Connick v.

Thompson, 563 U.S. 51, 65-66 (2011) (internal

quotation marks and citation omitted).

Prosecutors are obligated to keep discrimination

out of criminal prosecutions, from investigation

through trial and appeal. The National Prosecution

Standards require that a criminal investigation

should not begin or be continued if it is motivated in

whole or part” by the “perpetrator’s race, ethnicity,

religion, sexual orientation, or political affiliation . .

..” NPS 3-1.2.3 These duties do not disappear once

These National Prosection Standards are substantially

similar to the National Prosecution Standards in effect during

the Petitioner's sentencing hearing in 1997. See National

District Att'ys Assn., National Prosecution Standards R. 1.1 (2d

ed. 1991) (“The Primary responsibility of prosecution is to see

that justice is done.”) (hereinafter “1991 NPS”).

This Standard is substantially similar to several of the rules

in existence under the prior edition of the National Prosecution

Standards. See 1991 NPS, R. 42.1 (“The decision to initiate or

9

trial begins. As this Court has explained, the ethical

obligations that attach to a decision to indict a case

apply with equal force to the prosecutor’s conduct at

both trial and sentencing. See Imbler v. Pachtman,

424 U.S. 409, 424 (1976) (“A prosecutor is duty

bound to exercise his best judgment both in deciding

which suits to bring and in conducting them in

court.”).

The fact that Petitioner's counsel first introduced

the constitutionally suspect testimony does not

excuse the prosecutor’s conduct. A prosecutor cannot

“ask a question that implies the existence of a factual

predicate that the prosecutor either knows to be

untrue or has no reasonable objective basis for

believing is true.” NPS 6-6.2.4 Further, in “closing

argument, a prosecutor should be fair and accurate

in the discussion of the law, the facts, and the

reasonable inferences that may be drawn from the

pursue criminal charges should be within the discretion of the

prosecutor.”); id. at 42.4 (“Factors which should not be

considered in this decision include: d. Factors of the accused

legally recognized to be deemed invidious discrimination

insofar as those factors are nor pertinent to the elements of the

crime.”).

See also 1991 NPS, R. 77.2 (“Counsel should not ask a

question which implies the existence of a factual predicate

which he knows to be untrue or has no reasonable objective

basis for believing is true.); id. R. 77.5 (“The purpose of cross-

examination is a good faith quest for the ascertainment of truth

and should be conducted pursuant to this purpose.”); id. R. 77

emt. (“The prosecuting attorney, in his examination of

witnesses on both direct and cross, should be guided by conduct

that is not inconsistent with a good faith quest for the

ascertainment of the truth. Prejudicial error, bred by improper

examination tactics, might result in an undesirable conclusion

of a criminal trial. The interrogation of all witnesses should be

conducted fairly 9).

10

facts.” Id. 6-8. 1. The same standards impose a duty

to respond to misconduct, providing that a

“prosecutor is obligated to respond to professional

misconduct that has, will, or has the potential to

interfere with the proper administration of justice[.}”

Id. 1-1.6.5 The prosecutor’s duty to seek justice, in

short, precludes efforts to amplify or highlight

impermissible testimony or arguments such as Dr.

Quijano’s improper testimony.

The prosecutor in this matter failed to live up to

professional standards. If the prosecutor understood

the impropriety and falsity of the notion that

Petitioner’s race was probative of his likelihood of

reoffending, yet advanced that argument

nonetheless, then the prosecutor improperly

advanced a factual predicate that she knew “to be

untrue.” Id. 6-6.2. Conversely, if the prosecutor

actually believed that Petitioner’s race could, in fact,

impact his likelihood of reoffending, then the

prosecutor allowed her racial bias to infect the

proceedings in violation of multiple standards,

including National Prosecution Standard 3-1.2. In

sum, whether the prosecutor subscribed to the

veracity of Dr. Quijano’s testimony or not, the

See also 1991 NPS, R. 85.1 (“Closing arguments should be

characterized by fairness, accuracy, rationality, and a reliance

upon the evidence or reasonable inferences drawn therefrom.”).

See also 1991 NPS, R. 25.5 (“When a prosecutor has

reasonable suspicion of misconduct by defense counsel, the

prosecutor has a responsibility to take such action necessary to

substantiate or dispel such suspicion.”); id. R. 25.6 (“When a

prosecutor has knowledge of misconduct by defense counsel,

the prosecutor has the responsibility to report that knowledge

to the appropriate authority and take such other actions

necessary to sanction the misconduct.”).

11

decision to reference and underscore it violated the

“special duty of the prosecutor to seek justice.”

Connick, 563 U.S. at 65.

Prosecutors are held to especially high standards

in the sentencing process. During sentencing, a

prosecutor “should seek to assure that a fair and

fully informed judgment is made and that unfair

sentences and unfair sentence disparities are

avoided.” NPS 7-1.1.7 In questioning Dr. Quijano and

in arguing to the jury that it should rely on his

testimony, the prosecutor baited the jury into

imposing its sentence based upon racial bias, which

plainly violated that duty.

In sum, the prosecutor’s decision to elicit

racially-biased testimony in an effort to justify the

imposition of the death penalty in Petitioner’s case

is incompatible with the expectations placed upon

prosecutors, as well as fundamental conceptions of

due process and individualized justice.

B. Attorney General Cornyn Appropriately

Decided to Concede Error in Petitioner’s

Sentencing Hearing

Attorney General Cornyn first became aware of

Dr. Quijano’s racially biased testimony when a

Petition for Certiorari was filed in Saldajfio v. Texas,

530 U.S. 1212 (2000). See Press Release, Office of the

Tex. Att'y Gen., Statement from Attorney General

John Cornyn Regarding Death Penalty Cases, Office

of the Attorney General News Release (June 9,

2000), available at

7 See also 1991 NPS, R. 88.4 (“To the extent that the

prosecution becomes involved in the sentencing process, it

should seek to assure that a fair and informed judgment is

made and that unfair sentence disparities are avoided.”)

12

https://texasattorneygeneral.gov/newspubs/newsarc

hive / 2000/2000060 death. htm (last visited Aug. 2,

2016) (“June 9 Statement”) (noting that the Attorney

General’s Office had “identified problems associated

with the testimony of Dr. Walter Quijano”). In his

press release, Attorney General Cornyn stressed

that “it is inappropriate to allow race to be

considered as a factor in our criminal justice

system.” Id.

Commenting on the testimony in Saldano, which

was substantively indistinguishable from the

challenged testimony at issue here, Attorney

General] Cornyn observed that the “evidence of the

defendant’s race . . introduced before the jury by a

district attorney as a factor for the jury to weigh in

making its determination. . violated Mr. Saldafio’s

constitutional right to be sentenced without regard

to the color of his skin.” Press Release, Office of the

Tex. Att’y Gen., U.S. Supreme Court Grants State’s

Motion in Capital Case (June 5, 2000), available at

https://texasattorneygeneral.

gov/newspubs/newsarchive/2000/20000605sa‘danos

tatement.htm (last visted Aug. 2, 2016). Attorney

General Cornyn concluded by vowing to the people

of Texas to “continue to do everything I can to assure

Texans of our commitment to an equitable criminal

justice system.” June 9 Statement, supra. Following

his statement, Attorney General Cornyn conceded

constitutional error in the State’s brief responding to

Saldafio’s Petition for Certiorari, noting that

“[djiscriminaion on the basis of race, odious in all

aspects, is especially pernicious in the

administration of justice,” because “the infusion of

race as a factor for the jury to weigh in making its

determination violated [Mr. Saldano’s}

13

constitutional right to be sentenced without regard

to the color of his skin.” Resp. to Pet. for Cert. at 7-8,

No. 99-8119, Saldario v. Texas, 530 U.S. 1212

(2000).

Attorney General Cornyn's discovery that

sentencing hearings besides Saldafio’s may have

been tainted with racial bias triggered an obligation

to investigate to ensure that no pending sentence

had derived from constitutionally suspect

sentencing hearings. As discussed supra,

prosecutors must “respond to professional

misconduct that has, will, or has the potential to

interfere with the proper administration of justice.”

National Prosecution Standard 1-1.6.

Attorney General Cornyn thus undertook a

“thorough audit” of the relevant cases and identified

six cases in which constitutional violations occurred.

June 9 Statement, supra. He sent letters to the

parties in those six cases “advising them of” his

findings. Id. One of those six was Petitioner's case.

Press Release, Office of the Tex. Att’y Gen. (June 9,

2000), available at

https://texasattorneygeneral.gov/newspubs/newsarc

hive/2000/20000609saldanocases.htm (last visited

Aug. 2, 2016) The Attorney General’s Office advised

counsel for these six defendants, including

Petitioner’s counsel, that his office would not object

if these defendants sought to overturn the death

sentences and seek a new sentencing hearing based

on the constitutional violations created by Dr.

Quijano’s testimony. See Jim Yardley, Racial Bias

Found in Six More Capital Cases, N.Y. TIMES (June

11, 2000), http://www.nytimes.com/2000/06/1 1/us/

racial-bias-found - in- six-more-capital- cases. html

(last visited Aug. 2, 2016). To ensure consistency in

14

the application of justice, Attorney General Cornyn

also requested that local prosecutors review their

cases, which had not yet reached the Attorney

General’s office, to ensure that none of these cases

were constitutionally improper. See June 9

Statement, supra.

Texas’ decision to backtrack on Attorney General

Cornyn’s promise is extraordinary. Life or death

decisions regarding the administration of a state’s

criminal justice system should be made with

transparency, sobriety, and clarity, and they should

endeavor to offer finality to both defendants and

victims alike. Attorney General Cornyn’s decision to

take corrective action was mandated by the need to

ensure the consistent administration of justice,

given Texas’ decision to offer relief to every other

similarly-situated prisoner. The decision was also

compelled by the duties of the Attorney General’s

office, the oath Cornyn took upon assuming duty,

and the integrity the citizens of Texas expect from

their public officials. To backtrack on an ethical

obligation and decision to grant relief to a defendant

in any context is extraordinary; it is particularly so

here, where the purpose of backtracking was to

defend the propriety of a capital sentencing hearing

tainted by racist testimony.

II. TEXAS’ DECISION TO RENEGE ON ITS

PROMISE NOT TO OPPOSE

PETITIONER’S REQUEST FOR A NEW

SENTENCE UNDERMINES THE

INTEGRITY OF THE JUDICIAL SYSTEM

The public has a need and a right to expect that

the promises made by a state’s highest-ranking law

enforcement officials will be followed and faithfully

15

implemented. The opposite happened here. As

discussed supra, following Attorney General

Cornyn’s public confession of error in Petitioner's

case, the new Attorney General of Texas reversed

the position and challenged the very petition that his

predecessor invited Petitioner to file. See, e.g., Opp’n

to Appl. for Certificate of Appealability, No. 06-

70035, Buck v. Thaler, 345 F. App’x 923 (5th Cir.

2009), ECF No. 005195633.8 In doing so, he made a

specious argument to distinguish the circumstances

of Petitioner’s case. Id. at 16.

Respondent’s decision to break Texas’ promise to

Petitioner is extraordinary, and demands correction,

for three reasons. First, Texas’ backtracking

deviates from the primary responsibility of all

prosecutors to seek justice, and to faithfully adhere

to the U.S. Constitution. Second, the justice system

as a whole suffers when a prosecutor makes a

promise to a defendant to excercise prosecutorial

discretion in order to comply with its ethical

obligations and duties, but then breaks that

promise. Third, Texas’ decision was arbitrary and

has resulted in an uneven application of the law.

A. The Decision to Reverse Attorney

General Cornyn’s Promise is

Inconsistent with Prosecutorial Ethics

While serving as Attorney General of the United

States, Justice Jackson famously observed that

prosecutors’ offices “are of such independence and

importance that while you are being diligent, strict,

and vigorous in law enforcement you can also afford

to be just. Although the government technically loses

its case, it has really won if justice has been done.”

8 Hereinafter “Appealability Opp'n.“

16

Robert H. Jackson, U.S. Att'y Gen., The Federal

Prosecutor, Address at the Second Annual

Conference of United States Attorneys (Apr. 1, 1940)

(“Jackson Address”) Justice Jackson’s words reflect

the immense power and consequent potential for

abuse that prosecutors wield in the American justice

system. Prosecutors must not simply seek

convictions—they are obliged to seek justice and

protect the fairness of judicial proceedings. See

United States v. Williams, 504 U.S. 36, 62 (1992)

(Stevens, J., dissenting) (noting a prosecutor's duty

to protect the fundamental fairness of judicial

proceedings”); see also 1991 NPS, R. 25 cmt. (2d ed.

1991) (“It has long been recognized that the

responsibility of the prosecutor goes beyond simply

seeking indictment and conviction. The duty of the

prosecutor is to seek justice, not merely to obtain a

conviction.”) Like all other prosecutors in Texas, the

Attorney General has the duty to “assure that a fair

and fully informed judgment is made and that unfair

sentences and unfair sentence disparities are

avoided.” NPS 7-1.1.

The decision to reverse Attorney General

Cornyn’s promise was premised entirely on the

notion that Petitioner’s case was distinguishable

from Saldario and others “because Buck himself—

not the State—offered Dr. Quijano’s testimony into

evidence.” Appealability Opp’n at 16. That argument

is both unsound and unprincipled. First, the

argument ignores that the prosecution elicited the

very same improper testimony on cross-examination

and then urged the jury to rely on the expert’s

testimony in closing. It was improper for the

Attorney General to advance an argument so plainly

at odds with the record in an effort to justify his

17

decision to reverse course. Second, the argument

ignores that certain of the other defendants who

received relief under Attorney General Cornyn’s

action had also called Dr. Quijano as a witness. See

Buck v. Thaler, 132 S. Ct. 32 (2011) (Sotomayor, J.,

dissenting) (“Like Buck, the defendants in both Blue

and Alba called Quijano to the stand.”). Third, the

argument utterly sidesteps the need to remedy the

error of Petitioner's constitutionally-deficient

attorney, who elicited this testimony in the first

instance.

The Attorney General’s decision ensured that

Petitioner would not be sentenced in a manner

consistent with the five other similarly-situated

defendants whose sentences also were tainted by Dr.

Quijano’s testimony. That decision is at odds with

the “trust in the prosecutor” as “the representative

of a sovereignty whose interest. in a criminal

prosecution is not that it shall win a case, but that

justice shall be done.” Kyles v. Whitley, 514 U.S. 419,

439 (1995) (ellipses in original) (citing Berger v.

United States, 295 U.S. 78, 88 (1935)).

B. The Texas Attorney General’s Decision

to Reverse the Position of his

Predecessor Violated the Public Trust in

Evenhanded Administration of Justice

The decision of the Attorney General of Texas to

renege on his predecessor's position poses special

threats to the integrity of the justice system and

underscores the impropriety of the Fifth Circuit’s

denial of a certificate of appealability. Criminal

defendants, and particularly capital defendants,

have a right to expect that their cases will be treated

evenhandedly and consistently. The ideological

18

predispositions of the Attorney General or the U.S.

Attorney on a given case should not dictate the

availability of fundamental constitutional

protections. In fact, any perception that a change in

office leadership was the dispositive factor in a

charging or sentencing decision is corrosive to the

impartiality on which public confidence in the justice

system is based.

The justice system demands that prosecutors

uphold the commitments that they make to criminal

defendants. Prosecutors are officers of the court, and

the representations that prosecutors make carry the

authority of the state. See United States v. Hasting,

461 U.S. 499, 522 (1983) (explaining that

“Government prosecutors” are “officers of the court

charged with upholding the law’). It is reasonable to

hold prosecutors to those promises when dealing

with criminal defendants. As such, courts have

vacated and invalidated guilty pleas where they

have been elicited based upon false promises. See,

e.g., Santobello v. New York, 404 U.S. 257, 262 (1971)

(concluding “the interests of justice and appropriate

recognition of the duties of the prosecution in

relation to promises made” will be best served by

vacating judgment).

That Texas made its decision following a change

in the leadership of the Attorney General's Office

only worsens the problem. The credibility of

prosecutors as participants in the justice system

requires a knowledge of and respect for institutional

precedent. See id. (“The staff lawyers in a

prosecutor's office have the burden of ‘letting the left

hand know what the right hand is doing’ or has

done.” (emphasis added)). For example, U.S.

Attorney’s Offices regularly consult, study, and cite

19

historical office practice before making charging

decisions, negotiating plea agreements, or advancing

legal positions in the trial or appellate courts. See

Memorandum from Eric J. Holder Jr. to All Federal

Prosecutors, Department Policy on Charging and

Sentencing (May 19, 2010), available at

https://www.justice.gov/sites/default/files/oip

/legacy/2014/07/23/holder-memo-charging-

sentencing.pdf (last visited Jul. 31, 2016) (“With

respect to charging decisions, plea agreements, and

advocacy at sentencing, the mechanisms established

for obtaining supervisory approval should be

designed to ensure, as much as possible . district-

wide consistency. Supervisory attorneys selected to

review exercises of discretion should be skilled,

experienced, and thoroughly familiar with

Department and district-specific policies, priorities,

and practices.”); see also U.S. Dep’t Of Justice, U.S.

Attorneys’ Manual § 9-27.130 (2014),

https://www.justice.gov/usam/usam-9-27000-

principles-federal-prosecution#9-27.130 (explaining

that one of the purposes of establishing office

procedures is “to ensure consistency in the decisions

within each office .”). Those precedents help

promote uniformity in charging and sentencing

decisions, and also help promote accountability in

how justice is administered in both federal and state

governments.

If prosecutorial decisions are haphazardly cast

aside everytime the leadership of a prosecutor's

office changes, the public and judiciary will lose

confidence in the impartiality of prosecutors. See

Santobello, 404 U.S. at 262 (explaining that

government breach of plea agreement cannot be

excused because subsequent prosecutor was

20

unaware of agreement); Roberta K. Flowers, What

You See Is What You Get: Applying the Appearance

of Impropriety Standard to Prosecutors Appearances

to the Mind Are of Four Kinds. Things Either Are

What They Appear to Be; or They Neither Are, Nor

Appear to Be, 63 Mo. L. Rev. 699, 703, 732 (1998)

(“Because the prosecutor’s actions affect not only the

individual criminal case but also the system as a

whole, the prosecutor must be concerned with both

the propriety of her actions and the appearance of

those actions. As a quasi-judicial officer and a

minister of justice, the prosecutor affects public

confidence in the legal system.”) In cases like this,

where wle are provided with no explanation for

why the State declined to act consistently with its

Attorney General’s public announcement with

respect to Appellant Buck,” Buck v. Thaler, 452 F.

App’x 423, 433 n.41 (5th Cir. 2011), the public is left

to assume that the justice system is arbitrary. As

Attorney General Cornyn correctly stated: “The

people of Texas want and deserve a system that

affords the same fairness to everyone.” June 9

Statement.

The integrity of the justice system demands that

prosecutors be held to their promises to criminal

defendants. To depart from such a promise is indeed

extraordinary, and a departure with life or death

consequences for a defendant warrants close judicial

scrutiny.

C. Texas’ Decision Results in Arbitrary and

Uneven Justice

Texas’ current decision to oppose Petitioner’s

request for a new sentence is arbitrary because it

applies disparate treatment to similarly-situated

21

defendants. It is, of course, unjust for “virtually

identically situated litigants [to be] treated in a

needlessly disparate manner. Roper v. Weaver,

550 U.S. 598, 601 (2007). As discussed supra, with

the exception of this case, in every other case in

which Dr. Quijano’s prejudicial testimony was

offered, the State kept its promise to waive all

procedural defenses and conceded that Dr. Quijano’s

testimony demanded new sentencing hearings.

Texas has claimed that its refusal to abide by its

promise is not arbitrary because Petitioner's

ineffectiveness claim was foreclosed by state habeas

counsel's default of that claim, and because

Petitioner's case presentſed] a strikingly different

scenario than that presented in Saldario—Buck

himself, not the State offered Dr. Quijano’s

testimony into evidence.” Resp’t Dretke’s Answer

and Mot. for Summ. J. with Br. in Supp. at 17, 21

25, Buck v. Stephens, No. 4:04-cv-03965 (S.D. Tex.

Sept. 6, 2005) ECF No. 6 (hereinafter, “Respondent's

Answer’). Both of these arguments fail.

With respect to default, the Fifth Circuit rejected

the argument that the Attorney General’s failure to

honor its commitment to waive procedural default

defenses constituted an “extraordinary

circumstance.” Buck v. Stephens, 623 F. App’x 668,

673-74 (5th Cir. 2015). Such a conclusion cannot be

squared with the Fifth Circuit’s own statement that

this broken promise presented an “odd and factually

unusual” circumstance. Id. It is unclear why an “odd

and factually unusual” action is not extraordinary

under the Fifth Circuit’s reasoning. Indeed,

Attorney General Cornyn’s initial acknowledgement

that Petitioner had been sentenced in violation of the

Constitution and that Texas would therefore not bar

22

Petitioner's meritorious request for a new sentence

on the basis of any procedural default is, itself,

extraordinary. If the subsequent reversal of this

promise, for specious reasons, does not constitute

“extraordinary circumstances,” then the standard is

too strict to provide any meaning.

Moreover, Petitioner’s case is not meaningfully

different from those cases in which Texas abided by

its prior agreement. “Like Buck, the defendants in

both Blue and Alba called Quijano to the stand.”

Buck, 132 S. Ct. at 37 (Sotomayor, J., dissenting).

And contrary to Texas’ representation, the

prosecutor at Petitioner’s sentencing did indeed

elicit the same testimony, and returned to it in her

closing. Tr. at 260:13-21, ECF No. 5-117. Indeed,

because Texas waived its procedural defenses in

every other case involving Dr. Quijano’s testimony,

Petitioner is the only individual in Texas facing

execution on the basis of racially-biased expert

testimony.

As a consequence, Texas’ decision cannot be

squared with the prosecutorial duty to seek justice.

That duty requires a non-arbitrary application of the

law—especially in capital cases. DeGarmo v. Texas,

474 U.S. 973, 975 (1985) (Brennan, J., dissenting)

([ Where death is the consequence, the prosecutor's

“discretion must be suitably directed and limited so

as to minimize the risk of wholly arbitrary and

capricious action.” (internal citations and quotation

marks omitted)).

In this case, Texas lacks a legitimate interest in

the finality of this judgment. Texas has already

determined that cases similarly-situated to Saldario

were constitutionally-deficient and that it was

23

necessary to reverse the finality of these judgments

to uphold the Constitution, respect the rule of law,

and preserve the public’s faith in the criminal justice

system. Texas cannot credibly claim an interest in

the finality of petitioner’s sentence of death where

its own Attorney General publicly stated that this

sentence violated the Constitution because it

permitted the consideration of racially-biased

testimony. No “societial interest” can exist in

“permitting the criminal process to rest at a point

where it ought to never to repose.” Welch v. United

States, 136 S.Ct. 1257, 1266 (2016) (internal

quotations omitted).

In sum, the Texas Attorney General's reversal of

its prior position was extraordinary. The decision

erodes the public perception that prosecutorial

decisions are evenhanded and impartial, and

accordingly undermines the integrity of the office.

This Court should not allow such unjust and unequal

results. See United States v. Chavez, 416 U.S. 580,

599 (1974) (Douglas, J., concurring in part)

(acknowledging the duty of this Court to nourish

and enhance respect for the evenhanded application

of the law”); see also Breed v. Jones, 421 U.S. 519,

527 (1975) (discussing “our concepts of basic, even-

handed fairness.” (internal citations and quotation

marks omitted)).

CONCLUSION

This Court should reverse the Fifth Circuit’s

denial of Petitioner’s petition for a Certificate of

Appealability.

Respectfully submitted,

August 4, 2016

24

MICHAEL J. GOTTLIEB

Counsel of Record

BOIES, SCHILLER & FLEXNER LLP

5301 Wisconsin Ave., NW

Washington, DC 20015

Phone: (202) 237-2727

MGottlieb@bsfllp.com

RANDALL W JACKSON

JOANNA C. WRIGHT

BRET R. VALLACHER

BOIES, SCHILLER & FLEXNER LLP

575 Lexington Avenue

New York, NY 10002

APPENDIX OF AMICI CURIAE

William Broaddus: Attorney General of Virginia

(1985-1986); Assistant Attorney General, Virginia

(1970-1973); County Attorney, Henrico, Virginia

(1973-1982); Chief Deputy Attorney General, Virginia

(1982-1985)

A. Bates Butler III: United States Attorney, District

of Arizona (1980-1981); First Assistant United States

Attorney, District of Arizona (1977-1980); Deputy

Pima County, Arizona Attorney, (1970-1977)

W. J. Michae] Cody: Attorney General of Tennessee

(1984-1988); United States Attorney, Western District

of Tennessee (1977-1981)

Tim Cole: Assistant District Attorney, 271st District

of Texas (2010-2014); District Attorney, 97th District

of Texas (1993-2006)

W. Thomas Dillard: United States Attorney, Northern

District of Florida (1983-1987); United States

Attorney, Eastern District of Tennessee (1981);

Assistant United States Attorney, Eastern District of

Tennessee (1967-1976 and 1978-1983); United States

Magistrate for the Eastern District of Tennessee

(1976-1978)

Mark Earley: Attorney General of Virginia (1998-

2001); Virginia State Senator (1988-1998);

CEO/President, Prison Fellowship Ministries (2002-

2010)

2a

Rufus Edmisten: Attorney General of North Carolina

(1974-1984)

John Gallo: Assistant United States Attorney,

Northern District of Illinois (1989-1996)

Linda S. Hood Geffin: Assistant District Attorney,

Harris County, Texas (Second chair prosecutor in

State v. Buck) (1990-2000)

Brooks Harrington: Assistant United States Attorney,

District of Columbia (1978-1983)

Scott Harshbarger: Attorney General of

Massachusetts (1991-1999); District Attorney,

Middlesex County, Massachusetts (1983-1991)

Glenn Ivey: State’s Attorney, Prince George’s County,

Maryland (2003-2011); Assistant United States

Attorney for the District of Columbia (1990-1994)

Grant Jones: District Attorney, Nueces, Kleberg and

Kenedy Counties, Texas (1983-1991)

Gerald Kogan: Chief Justice, Supreme Court of

Florida (1996-1998); Associate Justice (1987-1996);

Judge, Eleventh Judicial Circuit of Florida (1980-

1987); Assistant State Attorney (including Chief

Prosecutor, Homicide and Capital Crimes Division),

Dade County, Florida (1960-1967)

Glen A. Kopp: Assistant United States Attorney,

Southern District of New York (2008-2013)

Christopher L. LaVigne: Assistant United States

Attorney, Southern District of New York (2005-2013)

3a

Timothy Lewis: Judge, United States Court of Appeals

for the Third Circuit (1992-1999); Judge, United

States District Court for the Western District of

Pennsylvania (1991- 1992); Assistant United States

Attorney, Western District of Pennsylvania (1983-

1991); Assistant District Attorney, Allegheny County,

Pennsylvania (1980-1983)

Kenneth Mighell: United States Attorney, Northern

District of Texas (1977-1981); Assistant United States

Attorney, Northern District of Texas (1961-1977)

Parvin Moyne: Assistant United States Attorney,

Southern District of New York (2006-2015)

Jerome O'Neill: United States Attorney, District of

Vermont (1973-1981)

James Petro: Attorney General of Ohio (2002-2006)

Michael M. Rosensaft: Assistant United States

Attorney, Southern District of New York (2006-2012)

Armando Rosquete: Assistant United States Attorney,

Southern District of Florida (2006-2012)

Harry Shorstein: State Attorney, 4th Judicial Circuit

of Florida (1991-2009)

James West: United States Attorney, Middle District

of Pennsylvania (1985-1993)

Mark White: Governor of Texas (1983-1987); Attorney

General of Texas (1979-1983)

4a

Alex Whiting: Assistant United States Attorney,

District of Massachusetts (1995-2002); Trial Attorney,

United States Department of Justice Civil Rights

Division (1991-1995); Special Assistant United States

Attorney (1992)

John T. Zach: Assistant United States Attorney,

Southern District of New York (2006-2015)