The U.S. Supreme Court’s 2017 ruling in Buck v. Davis highlights the disturbing consequences of deficient representation in capital cases. Duane Edward Buck was sentenced to death in 1997 after the defense’s own witness testified that “[t]here is an overrepresentation of Blacks among the violent offenders” and the defendant’s race made him more likely to be dangerous in the future. During closing argument, defense counsel failed to object to the State’s reference to this testimony. This improper evidence of race was the only evidence presented on which the jury could base a finding of “future dangerousness”—a necessary finding to sentence a defendant to death, as opposed to life in prison. The jury sentenced Buck to death based on this improper evidence. Thus, in Buck, the Supreme Court found ineffective assistance of counsel, holding that Buck’s trial counsel performed deficiently and that Buck was prejudiced by that deficiency.

Buck v. Davis, one of today’s clearest violations of a defendant’s constitutional right to a fair trial, went un-reviewed on the merits through countless appeals over the course of twenty-one years and had yet to be rectified when it reached the Supreme Court. Even after the State of Texas recognized a deficiency in Buck’s case, procedural roadblocks continued to deny Buck relief. Perhaps most concerning, though, is the fact that the ineffectiveness of Buck’s counsel was foreseeable and, thus, preventable.

The attorney who failed to adequately represent Buck in his initial proceedings carried a track record of deficient representation that today totals twenty former clients sentenced to death. Unfortunately, this pattern of deficient representation by a capital-defense attorney is not unique. Nor is this just a problem in Texas. “Repeat offenders”—attorneys whom courts continue to appoint as defense counsel in capital cases despite demonstrably defective representation in past cases—present a problem across the country. While no single shortcoming renders an attorney’s representation deficient, the most common deficiency of repeat-offender attorneys is their failure to zealously advocate on behalf of their client at the sentencing phase of trial. For instance, the representation is considered “ineffective” for purposes of deeming the attorney a “repeat offender” when the defense’s case for a life sentence, as opposed to death, is unusually short. Evidence of an inappropriately short case at the sentencing phase may include presenting little-to-no mitigation evidence; calling few, if any, defense witnesses; and failing to interview potential witnesses (either a key witness or a sufficient number of witnesses generally). Failing to zealously advocate at the sentencing phase is often what leads to a death sentence, as opposed to life in prison.

The “repeat” aspect of “repeat offender” points to an issue uniquely problematic in the capital context. Courts continue to appoint repeat offenders because, having tried capital cases previously, repeat offenders project an image of experience. Further, these attorneys shortcomings are often insufficient to satisfy the high threshold for an ineffective-assistance of counsel claim under the Sixth Amendment. These attorneys gain credibility through experience, while the quality of that experience is not often challenged successfully.

Current measures and remedies designed to prevent deficient capital representation are insufficient to guard against the repeat-offender problem. Sixth Amendment ineffective assistance of counsel claims, for example, are only remedial and do not prevent the appointment of inadequate attorneys in the first place. Buck’s plight—spending decades on death row before the Supreme Court finally ruled on his ineffective assistance of counsel claim—demonstrates the problem with relying on after-the-fact remedial measures to address ineffective counsel. Rather than rely on remedial measures, states should improve procedures for the appointment of counsel to prevent foreseeably deficient attorneys, like the one who represented Buck in his initial trial, from defending capital defendants in the future. Given that so much of a defendant’s fate rests in the hands of his or her attorney at the sentencing phase of trial, a defendant may live or die depending on the quality of his or her counsel. This gamble is unacceptable.

Section I will discuss in more detail the deficient representation in the trial that led to the Court’s decision in Buck v. Davis. Section II will explain why the appointing court should have known that Buck’s trial counsel was incompetent and illustrate why it is necessary to institute procedures to guide judges in their appointment of capital defense counsel. It will further reveal that Buck’s plight is not unique: the system for appointing capital defense counsel permits conspicuously deficient attorneys to continue to represent capital defendants across the country. This faulty system is due, in part, to the fact that courts often consider only one metric to evaluate a capital defense attorney’s qualifications: the number of capital trials in which the attorney has been involved. This standard is an imperfect measure of the quality of a capital defense attorney. Section III will suggest a two-prong approach for eliminating the appointment—and existence—of repeat offenders. States should (1) redefine “experience” for purposes of appointment decisions in capital cases, and (2) institute minimum requirements for offering mitigation evidence at the sentencing phase of trial.

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