SCOTUS finds death penalty counsel ineffective for introducing evidence that his client was more likely to commit crimes due to race/ Supreme Court rejects state’s and lower courts’ findings of procedural default/ Discussion of standards for granting a Certificate of Appelability

Buck v. Davis, No 15-8049 (2/22/2017)

The Supreme Court, in case where ostensibly the most important issue was one of procedural default and COA guidelines under the AEDPA (you will know these terms if you practice federal habeas corpus law, and if not, they are not of immediate concern), ruled on the merits that an attorney who, during the death penalty phase of a murder trial, introduced the testimony of a psychologist that blacks are more likely to commit crimes than others, and therefore there was an increased probability the black defendant would commit more crime was ineffective— “counsel’s performance fell outside the bounds of competent representation.”  Lesson— court appointed counsel should not feel compelled to present expert testimony the court paid for if it does not help his client.

The Court’s discussion of the waiver issue was interesting, given the difficulty in Pennsylvania of raising claims in a PCRA petition barred by the time limits of 42 Pa.C.S. §9545. While Pennsylvania does have an “attorney abandonment” doctrine that tolls the time to file a petition in some cases, as a practical matter it is difficult to get around the time bar just because an attorney did not communicate with a client about. Federal law on exception to the time bar is facially, and as a practical matter, narrowly more expansive than Pennsylvania’s. However, the discussion might fit the facts of, and prove useful for, some PCRA cases where a client relied on the implicit promise that his attorney would tell him what was going on to get around a time bar.

The case is also a must read for anyone denied a COA in a federal habeas matter who seeks authority to appeal form a Court of Appeals. The facts are pretty unique though, and will not open any floodgates.

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