//  9/29/17  //  Commentary

Yesterday I wrote about what the cases from the previous Supreme Court term suggested about how much the Court might focus on what the government has said previously on a point of law.  Today, I wanted to extend that discussion to whether the cases from the previous term suggest the Court might focus on what the government has previously said about the facts (or a particular fact).  

Buck v. Davis

The question in Buck v. Davis was whether the U.S. Court of Appeals for the Fifth Circuit had erred by denying Duane Buck a certificate of appealability to appeal the district court decision denying Buck permission to reopen his federal habeas proceeding.  Buck sought to reopen the habeas proceedings and argue that his lawyer at his capital sentencing proceeding was constitutionally ineffective for allowing an expert to testify that Buck was more dangerous, and more likely to commit another crime, because of his race. (Buck is African-American, and the expert’s bottom-line conclusion was that Buck should not be sentenced to death.)

Duane Buck’s case was one of several Texas death penalty cases involving the testimony of this expert, Dr. Quijano.  In several capital cases (specifically cases in which African-American defendants were sentenced to death) Quijano had testified that a defendant’s race affects whether a defendant is likely to commit future crimes, and dangerous.  It was not until 1999 that Texas confessed error and admitted that such testimony rendered a defendant’s death sentence unconstitutional because the sentence was infected with racist testimony.  The Supreme Court accepted Texas’s confession of error in Saldano v. Texas. Then Texas Attorney General (and now Senator) John Cornyn subsequently announced that Texas had identified other cases in which Quijano had urged juries to consider a defendant’s race when sentencing a defendant to death, including Duane Buck’s case.  Texas consented to resentencing in many of those cases.

But not in Buck’s case.  Texas opposed Buck’s federal habeas petition on the ground that Buck’s case was different from the other cases involving Dr. Quijano because in the other cases Quijano had testified for the state, whereas in Buck’s case he had testified for the defense.  As it turned out, however, that fact did not distinguish Buck’s case from other cases. Texas had consented to resentencing in other cases where the defense had called Dr. Quijano as a witness.

Those series of misleading statements and misrepresentations were not what ultimately led the Supreme Court to conclude that Buck’s federal habeas proceeding should be reopened.  In 2011, the Supreme Court denied Buck’s petition for certiorari from the Fifth Circuit’s denial of a certificate of appealability.  Justice Sotomayor’s dissent from the denial of certiorari (which was joined by Justice Kagan) laid out all of Texas’s misleading representations as a reason to allow Buck to reopen his habeas proceeding.

The decision this term in Buck v. Davis took a slightly different tack.  In addition to holding that Buck was entitled to reopen his habeas proceeding, the Court held that the claim Buck sought to litigate in his reopened habeas proceedings had merit.  Buck’s claim, however, was not the same claim on which Texas had confessed error in Saldano—that the prosecution’s use of race as a basis for identifying future dangerousness violated the Fourteenth Amendment.  Buck’s claim was that his lawyer was constitutionally ineffective (in violation of the Sixth Amendment, as incorporated by the Fourteenth Amendment) for allowing Dr. Quijano to testify.

But the Court still relied heavily on Texas’s words as a reason why Buck had demonstrated the kind of extraordinary circumstances that allow a petitioner to reopen his habeas proceedings.  The Court wrote: “The extraordinary nature of this case is confirmed by what the State itself did in response to Dr. Quijano’s testimony.”  The Court recounted the Texas Attorney General’s consent to resentencings, and statements about why Quijano’s testimony merited resentencings, and used those words to highlight why Texas’s proposed distinction between Buck’s case and the other cases involving Quijano’s testimony made no sense. 

Jennings v. Rodriguez

The government’s previous, misleading statements also came up in Jennings v. Rodriguez, the case about whether several immigration-detention statutes and the U.S. Constitution allow the executive branch to detain persons without a bond hearing for extended periods of time.  Rodriguez was initially just a case about the scope of the executive branch’s authority under the congressional statutes governing immigration-related detentions.  But after oral argument, the Court requested supplemental briefing on whether the government’s detention scheme was constitutional.

Here too, some of what the government had said in prior cases was used against it.  Rodriguez involved the scope and constitutionality ofdetentions under 8 U.S.C. 1226(c), 8 U.S.C. 1226(a) (provisions governing detention pending removal proceedings), and 8 U.S.C. 1225(b) (the provision governing detention of persons upon arrival into the United States).  The Court had previously weighed in on the constitutionality of 8 U.S.C. 1226(c) in Demore v. KimDemore had upheld the constitutionality of section 1226(c) in a case where the detained individual conceded he was deportable.  In upholding section 1226(c), Demore relied on the government’s representations that the average length of detentions under section 1226(c) were “brief” and lasted “about five months in the minority of cases” where an individual appealed an immigration judge’s determination.

As it turned out, however, things were more complicated than that.  Prior to the argument in Rodriguez, the government filed a letter with the Supreme Court in which it acknowledged “several significant errors” in the figures that Demore had relied on.  In Demore, the government represented that the average length of detentions in cases involving an appeal was five months.  The government’s letter stated the length of detentions was actually closer to thirteen months.  (Rodriguez, the respondent, argued that figure still under-estimated the average length of detentions.)

Rodriguez was one of the cases that was kicked over to the current term for re-argument.  So we’ll learn this term whether these shifting facts make any difference.

In an era of alternative facts and half (or really one-millionth) truths, it is worth pausing to consider whether the government’s reliance on alternative facts undermines the government’s litigation positions.  I previously drew attention to the government’s factual misrepresentations in its brief to the Fourth Circuit in IRAP v. Trump, when it represented that “virtually all” of the President’s statements that the district court had relied on were made before the President was elected or inaugurated.  The Fourth Circuit upheld the district court’s injunction in all significant respects, and indeed in all respects but one.  Did that decision have anything to do with the government’s aggressive and misleading characterization of the facts?  We may never know.  But if Buck and Rodriguez are any indication, the answer is, as if often the case, maybe.


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