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Supreme Court Takes Up Two Texas Capital Cases

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The United States Supreme Court this morning took up two capital cases from Texas, Moore v. Texas, No. 15-797, and Buck v. Stephens, No. 15-8049.

Moore has stated two "questions presented" in his petition.  One has to do with the definition of intellectual disability (formerly called mental retardation) for the purpose of the categorical exemption from capital punishment established in Atkins v. Virginia.  The second is the infamous "Lackey claim," that length of time on death row alone is enough reason to vacate an otherwise valid sentence, even when the state has been fighting tooth and nail against delay and the defendant has been causing it.  The latter has been turned down by the high court again and again, never getting more than two votes to take it up.  The order granting certiorari does not limit the grant to question 1, as I would have expected, but it is possible that this is an oversight and the court will amend the grant to exclude the Lackey claimUpdate:  The orders list and the docket now indicate that the grant of certiorari is limited to Question 1, the Atkins claim, turning down the Lackey claim.

In Buck, the defendant's own expert testified at some length that the defendant would not be dangerous in a prison environment, an opinion highly favorable to the defense on a critical question.  In the course of the testimony, the expert testified regarding the factors that correlate with rates of violent crime.  In response to a question from defense counsel, the expert said, "It's a sad commentary that minorities, Hispanics and black people, are overrepresented in the Criminal Justice System." 

This is not a claim that race causes people to be violent.  It is simply a statement of an unfortunate but undeniable demographic reality.  This statement, and a brief follow-up on cross-examination, have been widely misrepresented by Buck's lawyers and the media.  The full transcript of the testimony is here.

In other action, the high court decided a procedural question involving the Prison Litigation Reform Act and "exhaustion" in Ross v. Blake.

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Duane Buck should have been executed years ago. When did his habeas denial become final?

The IAC claim is laughable--assuming, arguendo, Quijano's comments had any effect on the jury, the fact that he was saying that this particular black guy wasn't a danger notwithstanding his general views. That's strategy.

And are we really going to smear the prosecutor for recapping the view that was elicited on direct? How the prosecutor's question violates the constitution is a mystery.

The stay is lawless.

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