Official - Subject to Final Review 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - x 3 DUANE EDWARD BUCK, 4 5 : Petitioner : v. No. 15-8049 : 6 LORIE DAVIS, DIRECTOR, TEXAS : 7 DEPARTMENT OF CRIMINAL JUSTICE, : 8 CORRECTIONAL INSTITUTIONS : 9 DIVISION, : 10 Respondent. : 11 - - - - - - - - - - - - - - - - - x 12 Washington, D.C. 13 Wednesday, October 5, 2016 14 15 The above-entitled matter came on for oral 16 argument before the Supreme Court of the United States 17 at 11:07 a.m. 18 APPEARANCES: 19 CHRISTINA A. SWARNS, ESQ., New York, N.Y.; on behalf of 20 21 22 the Petitioner. SCOTT A. KELLER, ESQ., Solicitor General, Austin, Tex.; on behalf of the Respondent. 23 24 25 Alderson Reporting Company Official - Subject to Final Review 2 1 C O N T E N T S 2 ORAL ARGUMENT OF 3 CHRISTINA A. SWARNS, ESQ. 4 PAGE On behalf of the Petitioner 5 ORAL ARGUMENT OF 6 SCOTT A. KELLER, ESQ. 7 On behalf of the Respondent 8 REBUTTAL ARGUMENT OF 9 CHRISTINA A. SWARNS, ESQ. 10 On behalf of the Petitioner 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Alderson Reporting Company 3 25 46 Official - Subject to Final Review 3 1 P R O C E E D I N G S 2 (11:07 a.m.) 3 4 CHIEF JUSTICE ROBERTS: We'll hear argument next today in Case 15-8049, Buck v. Davis. 5 Ms. Swarns. 6 ORAL ARGUMENT OF CHRISTINA A. SWARNS 7 ON BEHALF OF THE PETITIONER 8 9 MS. SWARNS: Mr. Chief Justice, and may it please the Court: 10 Duane Buck was condemned to death after his 11 own court appointed trial attorneys knowingly introduced 12 an expert opinion that he was more likely to commit 13 criminal acts of violence in the future because he is 14 black. 15 make its critical future dangerousness decision which 16 was a prerequisite for a death sentence and the central 17 disputed issue at sentencing based not on the individual 18 facts and circumstances of Mr. Buck's crime or his life 19 history, but instead based on a false and pernicious 20 group-based stereotype. 21 This evidence encouraged the sentencing jury to JUSTICE GINSBURG: Didn't that expert say, I 22 don't think he's a future -- I don't think he's going to 23 be a future danger? 24 25 MS. SWARNS: On cross-examination Dr. Quijano testified that he did believe that Mr. Buck Alderson Reporting Company Official - Subject to Final Review 4 1 was likely to commit future crimes of violence. 2 that -- at the prosecutor's questioning that Mr. Buck 3 was on the low end of the continuum, but that he could 4 not say that Mr. Buck was not likely to commit criminal 5 acts of violence. 6 7 8 9 10 He said But Mr. Buck was, unquestionable -- JUSTICE GINSBURG: But more likely than not that he wouldn't. MS. SWARNS: Yes. He was on the low end of the spectrum in terms of the risk of violence. But here this expert's evidence not only 11 prejudiced Mr. Buck at sentencing, it also put the very 12 integrity of the courts in jeopardy. 13 Texas acknowledged that its ordinary interest and 14 finality does not apply. 15 would waive its procedural defenses and allow new 16 sentencing hearings in six capital cases, including 17 Mr. Buck's, that involved the same expert's race as 18 criminal violence opinion. 19 cases and then reversed course in Mr. Buck's case alone. 20 For that reason, It publicly declared that it Texas conceded error in five As a result, Mr. Buck is the only Texas 21 prisoner to face execution pursuant to a death sentence 22 that Texas itself has acknowledged is compromised by 23 racial bias that undermines confidence in the criminal 24 justice system. 25 CHIEF JUSTICE ROBERTS: Alderson Reporting Company There's a tension in Official - Subject to Final Review 5 1 your -- your briefing over what you're really arguing 2 for. 3 Circuit standard for a COA in saying they're imposing an 4 improper and unduly burdensome. 5 briefing, and as you sort of begun today, is really 6 focused on the underlying merits of the case. 7 sort of have to make a choice, don't you, because if we 8 didn't focus on the merits and rule in your favor, we 9 don't get to say too much about the threshold for In the question presented, you focus on the Fifth But most of the And you 10 Certificate of Appealability. 11 Certificate of Appealability, all we're saying on the 12 merits is there's a substantial showing. 13 want us to do, on the merits or on the Certificate of 14 Appealability? 15 MS. SWARNS: Well, if we focus on the So what do you Well, in order to determine 16 whether Mr. Buck was expired -- was entitled to a 17 Certificate of Appealability, this Court and the Fifth 18 Circuit was required to determine whether or not the 19 district court decision with respect to both the 20 constitutional question and the procedural question 21 would be debatable among jurors. 22 CHIEF JUSTICE ROBERTS: Right. Right. So 23 is that what you want us to say, that because the merits 24 are debatable, he should have gotten a Certificate of 25 Appealability? Or do you want us to say, well, he Alderson Reporting Company Official - Subject to Final Review 6 1 should have won, and so he obviously should have gotten 2 a Certificate of Appealability? 3 MS. SWARNS: We believe that the district 4 court's decision is wrong, and, therefore, Mr. Buck was 5 entitled to a Certificate of Appealability. 6 CHIEF JUSTICE ROBERTS: Okay. So on the 7 merits -- on the merits then, you just want us to say, 8 oh, reasonable jurists could disagree about whether or 9 not he was unconstitutionally sentenced? 10 MS. SWARNS: Or that the -- that the 11 reasonable jurists would conclude that the district 12 court's decision that Mr. Buck was not prejudiced was 13 incorrect, and, therefore, Mr. Buck was -- was entitled 14 to a Certificate of Appealability. 15 JUSTICE KAGAN: But, for example, last year 16 in a case called Welch, the question came up on the 17 Certificate of Appealability, and we just said, well, of 18 course he should have gotten a Certificate of 19 Appealability because he's right. 20 the same thing, oddly enough, in one of the cases here. 21 We did the same thing in Trevino. 22 gotten a Certificate of Appealability because he has the 23 merits on his side. 24 want us to do? 25 And similarly, we did Yes, he should have That's essentially what you would MS. SWARNS: Yes. Alderson Reporting Company Official - Subject to Final Review 7 1 JUSTICE KAGAN: I mean, that does leave on 2 the table -- maybe this is what the Chief Justice was 3 saying -- this question of whether the Fifth Circuit is 4 just using the wrong approach and the wrong standards 5 for the Certificate of Appealability question. 6 MS. SWARNS: Well, in this case the Fifth 7 Circuit's analysis completely ignored the heart of the 8 case in making its Certificate of Appealability 9 determination, right? 10 The center of Mr. Buck's claim has always 11 been the introduction of racial discrimination that 12 undermines the confidence in, not only his own death 13 sentence, but the integrity of the court's as well. 14 In assessing the debatability of the 15 district court's decision, the Fifth Circuit doesn't 16 engage at all around the central question here about 17 the -- the critical role of race in Mr. Buck's case, in 18 his sentence, in the integrity of the court's, and 19 ultimately in what Texas did in terms of acknowledging 20 the absence of finality in its case. 21 Circuit's conduct in conducting the Certificate of 22 Appealability analysis, you know, ignored critical facts 23 in this case. 24 25 So the Fifth So that -- JUSTICE SOTOMAYOR: The centers in this case -- Alderson Reporting Company Official - Subject to Final Review 8 1 MS. SWARNS: Yes. 2 JUSTICE SOTOMAYOR: -- argue that the Court 3 had improperly denied a COA, and that was their basic 4 position. 5 just engaged the standard of issuance of a COA. 6 back to that. 7 wrong standard for denying the COA, or will you only be 8 satisfied if we say you win? 9 They didn't really engage the merits; they We go Are you satisfied if we say they used the MS. SWARNS: I think that the Fifth 10 Circuit -- you know, obviously, I would like for this 11 Court to say we win and Mr. Buck is entitled to a new -- 12 a new, fair sentencing hearing. 13 my preference. 14 That would obviously be I think in the posture of this case, this 15 Court can and should say that Mr. Buck is entitled to a 16 Certificate of Appealability because all of the 17 explanations and justifications that were presented by 18 Texas and the district court are incorrect and 19 unsustainable. 20 JUSTICE SOTOMAYOR: All right. Now let's 21 start with the COA issue. With respect to the COA 22 issue, I read your adversaries who are -- to say 23 Martinez, Trevino could never constitute an exceptional 24 circumstance to -- to justify the issuance of a COA. 25 Basically that's their position, 'cause they weren't Alderson Reporting Company Official - Subject to Final Review 9 1 made retroactive. 2 MS. SWARNS: Yes. 3 JUSTICE SOTOMAYOR: So first, what does the 4 retroactivity argument have to do with anything? 5 right? 6 Martinez and -- and Trevino retroactive if we recognize 7 it as an exceptional reason to forgive a procedural 8 default. 9 What does it apply to? All And aren't you making And then second, there's a circuit split on 10 this question, and you recognize it in your brief. 11 have the Third Circuit using a three-part test that says 12 Martinez and Trevino, under certain circumstances, can 13 be a reason to find exceptional circumstance. 14 The Ninth Circuit has a six- or seven- or 15 eight-part test. 16 Fifth says never. 17 You They never make it simple. And the Where do you stand on all these tests? And 18 what's your position with respect to this -- to this 19 retroactivity question? 20 MS. SWARNS: Well, with respect to 21 retroactivity, Teague governs new rules of 22 constitutional law that apply at the trial stage. 23 is just a rule that doesn't -- has no applicability. 24 squarely arises only in the habeas context, so Teague 25 just doesn't apply to Martinez and Trevino. Alderson Reporting Company This It Official - Subject to Final Review 10 1 With respect to its applicability to 2 Mr. Buck and to -- to Mr. Buck, this is a circumstance 3 where if the 60B was properly granted, Mr. Buck would be 4 back in the same exact position as were the Petitioners 5 in Martinez and Trevino. 6 cause to excuse the default of his trial counsel in 7 effectiveness claim in the first petition for habeas 8 corpus relief. 9 He would be arguing -- seeking JUSTICE ALITO: This is a very -- a very 10 unusual case, and what occurred at the penalty phase of 11 this trial is indefensible. 12 what the implications of your argument would be for all 13 of the other prisoners who -- let's say they're not even 14 capital cases, but they have -- they want now to raise 15 some kind of ineffective-assistance-of-counsel claim. 16 That is procedurally defaulted. 17 have relief from a prior judgment denying habeas relief. 18 But what concerns me is And they say we should And that -- what would prevent a ruling in 19 your favor in this case from opening the door to the 20 litigation of all of those issues so that those -- 21 Martinez and Trevino would effectively be retroactive. 22 23 24 25 MS. SWARNS: Well, I think there are three factors, I think, that makes Mr. Buck's case unique. First and foremost, it involves an express appeal to racial bias that not only undermined the Alderson Reporting Company Official - Subject to Final Review 11 1 integrity of his own death sentence, it undermined the 2 integrity of the court's. 3 Second, he now faces execution. This is a 4 death penalty case. 5 that death sentence that is unquestionably -- and I will 6 agree with you -- indefensible and uncompromised by 7 racial bias. 8 9 He now faces execution pursuant to Third, there's no question of Mr. Buck's diligence here. Mr. Buck has consistently and 10 unrelentingly, you know, pursued relief on his claims. 11 So I think that those factors make Mr. Buck's case 12 unique from the vast majority -- 13 14 15 JUSTICE SOTOMAYOR: That's the Third Circuit test, isn't it? MS. SWARNS: Yes. It is. And that makes 16 Mr. Buck unique from the vast majority of noncapital or 17 other prisoners who are going to bring these cases to 18 the Federal courts. 19 CHIEF JUSTICE ROBERTS: So the -- the -- the 20 answer to Justice Alito is that in our opinion, we 21 should say our interpretation of Rule 60B, in case it 22 doesn't apply unless it's a capital case? 23 doesn't draw that distinction. 24 25 MS. SWARNS: No. Rule 60B I think in terms of the question of the extraordinariness factors, I think this Alderson Reporting Company Official - Subject to Final Review 12 1 Court can and should look to those that we've identified 2 in our brief. 3 First, is there a risk of injustice to the 4 Petitioner? 5 facing an execution. 6 Here we unquestionably have that. CHIEF JUSTICE ROBERTS: We're The risk of 7 injustice, if it was a sentence for ten years, that's 8 unjust. 9 MS. SWARNS: 10 11 Absolutely. CHIEF JUSTICE ROBERTS: Okay. So that doesn't work. 12 MS. SWARNS: So there are more. 13 CHIEF JUSTICE ROBERTS: 14 MS. SWARNS: 15 The risk of injustice and impairing the What else? There are more. 16 integrity of the judicial system more broadly. 17 States -- 18 CHIEF JUSTICE ROBERTS: 19 answer there. 20 integrity of the system. 21 death is different. The I guess the same Sentenced to 40 years, that impairs the I mean, I know that obviously, 22 MS. SWARNS: Right. 23 CHIEF JUSTICE ROBERTS: 24 factor in why it's different in the context of 25 interpreting particular rules. Alderson Reporting Company But it's hard to Official - Subject to Final Review 13 1 MS. SWARNS: You know, I would say 2 additionally, though, here, Your Honor, particularly 3 unique to Mr. Buck's case, we have the State 4 acknowledging that it has no significant finality 5 interest in Mr. Buck's death sentence. 6 And when you add to that the fact that 7 Mr. Buck's claim of ineffective assistance of counsel 8 is -- is, you know, to be mildly meritorious, you know, 9 you have a group of factors which I think can -- this 10 Court should provide guidance around -- 11 JUSTICE KENNEDY: The State did change its 12 mind with respect to Mr. Buck's case, and I assume 13 they'll tell us that there's a reason for that. 14 not just because his defense counsel introduced it, 15 because that -- that was true in some other cases as 16 well. 17 It's But if -- if we rely on that too much, won't 18 this discourage prosecutors from offering discretionary 19 concessions? 20 MS. SWARNS: You know, this is a unique 21 circumstance. I think that -- I don't believe it would 22 discourage prosecutors, because Texas doesn't actually 23 disagree with -- and cannot disagree with -- the 24 fundamental problem in this case, which is that it is 25 compromised by racial bias that undermines the integrity Alderson Reporting Company Official - Subject to Final Review 14 1 of the courts. 2 Texas has certainly taken a different 3 position about what it should do about it, but it cannot 4 get away from those -- those core facts that establish 5 that, like no State has an interest in a death sentence 6 that is undermined by racial bias. 7 CHIEF JUSTICE ROBERTS: To the -- to the 8 extent it is a unique case, it really doesn't provide a 9 basis for us to say anything at all about how the Fifth 10 Circuit approaches Certificates of Appealability, does 11 it? 12 platform to issue general rules. It's a unique case, so this would be an odd 13 But in the brief you say, well, the Fifth 14 Circuit grants these in a very small percentage of 15 cases. 16 17 18 The other circuits are much higher. But if it is so unique, I don't know how we can use it to articulate general rules. MS. SWARNS: Well, it's certainly an 19 extraordinary case. And I think that because it is so 20 extraordinary, and because the lower courts failed to, 21 you know, acknowledge that and -- and reach that 22 conclusion, that this case sort of underscores the deep 23 need for guidance to the lower courts on the evaluation 24 and assessment and what factors should be considered in 25 determining when 60B is or is not appropriate. Alderson Reporting Company Official - Subject to Final Review 15 1 CHIEF JUSTICE ROBERTS: Was it wrong? Was 2 it wrong for the court of appeals to conduct the merits 3 inquiry in this case? 4 length in trying to determine whether or not the claims 5 were valid. 6 I mean, they went to considerable Was that an error? Should they have just 7 said, well, you know, the -- the test is what, 8 substantial -- showing a substantial -- a substantial 9 showing of denial? They should have just done, you 10 know, kind of a sort of quick-and-dirty peek at the 11 merits and say, yeah, there might be something there. 12 MS. SWARNS: 13 CHIEF JUSTICE ROBERTS: 14 Yes. So did they err in looking at it more closely? 15 MS. SWARNS: Certainly this Court has made 16 clear time and again the COA analysis is a threshold 17 review of the merits. 18 CHIEF JUSTICE ROBERTS: So should our 19 decision be just that, they erred in looking at the 20 merits? 21 Appealability and sent it back? 22 want, is it? 23 They should have just issued a Certificate of MS. SWARNS: That's not what you I -- no, no, it's not. Again, 24 I believe that this Court, because we do have the Fifth 25 Circuit and the district court going past the threshold Alderson Reporting Company Official - Subject to Final Review 16 1 analysis and speaking substantively to the merits, this 2 Court can and should explain that those reasons that 3 have been offered by those courts are incorrect. 4 under the COA standard, if this Court -- a COA should 5 issue if the district court's decision was debatable or 6 wrong. 7 CHIEF JUSTICE ROBERTS: And Well, but it seems 8 to me we're well beyond a COA should issue. 9 want us to say that. You don't You want us to say that there's 10 been a constitutional violation in this case and the 11 court of appeals was wrong in determining that there 12 wasn't. 13 MS. SWARNS: I would like for this Court to 14 say that there was a constitutional violation in this 15 case -- 16 JUSTICE KAGAN: Ms. Swarns, I would have 17 thought that your answer would be that, you know, you 18 think this is so -- such an extraordinary case, and that 19 the Fifth Circuit got this so wrong, that it's the best 20 proof that there is that the Court is -- is approaching 21 the COA inquiry in the wrong way. 22 MS. SWARNS: 23 JUSTICE KAGAN: 24 25 Right. If they reached the wrong result in this case -MS. SWARNS: Right. Alderson Reporting Company Official - Subject to Final Review 17 1 JUSTICE KAGAN: -- it's because they are 2 just not understanding what the COA inquiry is all 3 about. 4 MS. SWARNS: Right. I mean, I agree, 5 absolutely. I mean, just the fact that this Court 6 found -- was unable to find these facts and 7 circumstances debatable shows the -- the fact that the 8 Fifth Circuit is applying the standard incorrectly for 9 sure. 10 And it goes also to the need for guidance, 11 right, to the Fifth Circuit not only on the COA point, 12 but again, on the 60(b) point, because there really is a 13 substantial lack of information available to the lower 14 courts with respect to the evaluation of what is or is 15 not extraordinary. 16 CHIEF JUSTICE ROBERTS: So what is the test 17 you -- should we say the Fifth Circuit should apply in 18 considering whether to issue Certificates of 19 Appealability? 20 statutory language? 21 Do you have anything to add to the MS. SWARNS: You know, I don't think -- I -- 22 I don't have additional language. 23 has made quite clear that it's a threshold application. 24 What this case demonstrates is that the Fifth Circuit 25 has not been, and as this Court has noted in previous Alderson Reporting Company I think this Court Official - Subject to Final Review 18 1 decisions, that the Fifth Circuit has not scrupulously 2 adhered to the application of the COA standard, and the 3 data that we provided to this Court sort of amplifies 4 and demonstrates that fact. 5 So I think that what you can do is use this 6 Court, again, as an example of how far the Fifth Circuit 7 is out of line from the -- the proper application of the 8 COA standard under these circumstances. 9 JUSTICE ALITO: Would it be possible to 10 defend what the Fifth Circuit did based on the prejudice 11 prong of Strickland? 12 evidence both relating to the offense that was committed 13 and to other conduct by Petitioner that would show 14 future dangerousness. 15 rest exclusively on this bizarre expert testimony; isn't 16 that correct? 17 There -- there was a lot of MS. SWARNS: It would -- it didn't have to There is certainly the -- Texas 18 certainly presented evidence of future dangerousness in 19 this case. 20 that evidence was sort of the facts and circumstances of 21 the instant crime, Mr. Buck's lack of remorse 22 immediately after he was arrested for the instant crime, 23 and the domestic violence incidents and the prior 24 offenses. 25 I think that, however, the heart of those -- This Court has recognized that aggravated Alderson Reporting Company Official - Subject to Final Review 19 1 crimes like this, exactly like the kind we are talking 2 about here, can and do trigger a racialized fear of 3 violence that can yield arbitrary death sentencing 4 decisions. 5 So the fact that we do face a case that does have very 6 aggravated facts sort of compounds the risk of prejudice 7 to Mr. Buck. 8 9 That was your holding in Turner v. Murray. And what we have here is a circumstance where not only do the terrible facts of the crime 10 trigger that real risk of an arbitrary death sentencing 11 decision, you have the expert stepping in and 12 compounding that risk and putting it -- putting an 13 expert scientific validity to this pernicious idea that 14 Mr. Buck would be more likely to commit criminal acts of 15 violence because he's black. 16 case is doubled, essentially. 17 So the risk in Mr. Buck's In light of -- in light of those facts, in 18 light of the aggravating evidence here, and how 19 Dr. Quijano's opinion compounded the risk of violence -- 20 JUSTICE SOTOMAYOR: Counselor, I know that 21 there's been a lot of talk about how small the reference 22 to race was with respect to the questioning at trial on 23 both sides, but how much was it a part of the actual 24 report, because that's what the jury asked for? 25 MS. SWARNS: Uh-huh. Alderson Reporting Company Official - Subject to Final Review 20 1 2 JUSTICE SOTOMAYOR: things: Could they consider life without parole? 3 MS. SWARNS: 4 JUSTICE SOTOMAYOR: 5 And they asked for two considering mercy. Uh-huh. So they were obviously Somebody was. 6 MS. SWARNS: Correct. 7 JUSTICE SOTOMAYOR: I don't know if all of 8 them, but someone wanted to talk about it, that's what 9 they told the judge. Can we talk about life without -- 10 life without parole? I don't even know what the answer 11 to that was. I should have checked that -- 12 MS. SWARNS: 13 JUSTICE SOTOMAYOR: 14 Uh-huh. can tell me? 15 MS. SWARNS: 16 JUSTICE SOTOMAYOR: 17 -- but if you do you, Yeah. But, number two, they asked for the psychiatric report. 18 MS. SWARNS: 19 JUSTICE SOTOMAYOR: 20 the testimony reread, but for the report. 21 22 That's correct. Does that -- not to have So tell me what -- how that changes the calculus, those two things in any way. 23 MS. SWARNS: Sure. So first the issue of 24 life without parole was negotiated in the trial 25 proceedings. It was absolute -- they were not given any Alderson Reporting Company Official - Subject to Final Review 21 1 information about the feasibility of parole in this 2 case, but as Your Honor correctly observes -- 3 JUSTICE GINSBURG: They were told that he 4 would be eligible for parole after, what was it, 5 40 years? 6 MS. SWARNS: 7 JUSTICE GINSBURG: 8 No, they were not. They were not given that information? 9 MS. SWARNS: If that were true -- no, they 10 were not. 11 the trial prosecutor fought very hard to make sure that 12 this jury did not receive the information about parole 13 eligibility. 14 concerned about making sure was redacted from 15 Dr. Quijano's report because he, in his report, had a 16 reference to the -- the 40 -- 17 18 19 20 21 They were not given information. In fact, It was one of the issues that she was very JUSTICE SOTOMAYOR: How old was Mr. Buck? How old was Mr. Buck at the time? MS. SWARNS: I think he was in his 20s. I a.m. not sure at this moment. So we do know that the jury was considering 22 the possibility of -- of a life sentence, and then we 23 have them asking for the psychiatric report, which 24 contains a sentence that says that Mr. Buck is, in fact, 25 more likely to commit criminal acts of violence because Alderson Reporting Company Official - Subject to Final Review 22 1 he's black. 2 that report, after the jury had heard it on direct and 3 cross-examination from the witness stand, so ultimately 4 we have a situation where the jury is literally making 5 the decision about Mr. Buck's life and death -- making 6 the future-dangerous decision while they have this 7 imprint in their hands. 8 9 That evidence, of course, once you have And we also know, this is a jury that was not able to make a quick decision on sentence. You 10 know, notwithstanding Texas's claims that its case in 11 future dangerousness was overwhelming, this jury didn't 12 make a quick decision as you would have expected to see 13 if the case was, in fact, overwhelming. 14 out for two days on the questions that it was presented 15 with. 16 pivotal time when it was obviously struggling to 17 determine an answer to the question of whether or not 18 Mr. Buck was or was not likely dangerous, it had in its 19 hands a piece of paper that validated evidence that came 20 from both sides of the aisle in this case. And so what this shows is at -- during this 21 JUSTICE GINSBURG: 22 composition of the jury was in this case? 23 This jury was MS. SWARNS: Do we know what the It's not in the records, Your 24 Honor. Our research that we would -- the only thing 25 we've been able to confirm on our own is that ten of the Alderson Reporting Company Official - Subject to Final Review 23 1 jurors were white. 2 two, and it's certainly not in the record. 3 I don't know the race of the other But ultimately I don't think it matters what 4 the race of the jury is. 5 explicit appeal to racial bias. 6 evidence that courts for over a hundred years have said, 7 once it is introduced, even just once, it's impossible 8 to unring the bell. 9 this evidence in this case spoke to the pivotal question 10 This is evidence of an This is the kind of And the -- this is because this -- of whether or not Mr. Buck would be executed. 11 The future dangerousness question in Texas 12 was the prerequisite for a death sentence. 13 did not find a future dangerousness, then Mr. Buck 14 couldn't be executed. 15 heavily on the -- on the death scale, and particularly 16 as it fit into the evidence in this case. 17 If this jury This evidence put the thumb As I said, Texas presented three categories 18 of evidence. 19 prior domestic violence, but nothing that Texas 20 presented spoke to the question of whether or not 21 Mr. Buck was likely to commit criminal acts of violence 22 if he was, in fact, sentenced to life in prison. 23 just didn't present any evidence on that subject. 24 25 The crime, the lack of remorse, and the Mr. Buck, on the other hand, presented Dr. Lawrence, and Dr. Lawrence spoke -- you know, Alderson Reporting Company They Official - Subject to Final Review 24 1 powerfully to the question of whether Mr. Buck was 2 likely to commit criminal acts of violence if he were in 3 prison, which was the only alternative to a death 4 sentence that the jury was presented with. 5 Dr. Lawrence -- 6 JUSTICE ALITO: He killed people. You -- 7 you said that the evidence of his dangerousness was 8 limited to those with whom he had a romantic 9 relationship, but he killed at least two people with 10 whom he didn't have a -- he killed two people with whom 11 he did not have a romantic relationship; isn't that 12 right? 13 MS. SWARNS: 14 JUSTICE ALITO: 15 MS. SWARNS: 16 JUSTICE ALITO: 17 No. No. He killed -- His stepsister? She survived. I'm sorry. All right. Well, he shot her -- 18 MS. SWARNS: Yes, exactly. And this is all 19 clearly in the context -- absolutely, he did. There's 20 no question about the fact that he shot his -- his 21 sister. 22 of events where it arises out of the breakdown of his 23 relationship with his ex-girlfriend. 24 however, Dr. Lawrence presents evidence that the record 25 is that Mr. Buck has a positive institutional adjustment And -- but all of that was in this one sequence Alderson Reporting Company And again, Official - Subject to Final Review 25 1 history, that when he was previously incarcerated he was 2 held in minimum security, and that all of the crimes of 3 violence that took place in the Texas Department of 4 Corrections in the prior year were committed by people 5 who were getting involved, and there was no gang 6 involvement here. 7 So Dr. Lawrence's testimony highlights the 8 shortcomings or the limitations in Texas's case for 9 future dangerousness, right? They say here we do have 10 evidence that -- that goes beyond what Texas has 11 presented. 12 evidence that Texas has that says he will be dangerous 13 in that context is Dr. Quijano's evidence that he has 14 immutable characteristics which establishes that he will 15 be dangerous no matter where he is. 16 reserve the remainder of my time for rebuttal. 17 CHIEF JUSTICE ROBERTS: 18 Mr. Keller. 19 ORAL ARGUMENT OF SCOTT A. KELLER 20 ON BEHALF OF THE RESPONDENT 21 22 23 And what fills the gap for Texas, the only MR. KELLER: And I would like to Thank you, counsel. Thank you, Mr. Chief Justice, and may it please the Court: We're here today defending the death 24 sentence because Petitioner murdered a mother in front 25 of her children. He put a gun to the chest of his Alderson Reporting Company Official - Subject to Final Review 26 1 2 stepsister and shot her, and he murdered another man. CHIEF JUSTICE ROBERTS: I assume the 3 facts -- I assume the facts in the other Saldano cases 4 are similarly heinous, the ones where the state 5 determined that nonetheless that there was a risk that 6 they would be sentenced to death because of their race. 7 And I don't understand -- I understand the procedural 8 differences in this case, but I don't understand why 9 that ultimate conclusion doesn't apply here as well. In 10 other words, regardless of whether the evidence was 11 admitted by the prosecution or by the defense, it would 12 seem to me that the same concern would be present. 13 MR. KELLER: There's a key distinction 14 between when a government, a prosecuting authority, is 15 introducing evidence of racist dangerousness. 16 would be the equivalent of using race as an aggravator. 17 When the defense injects race, although we don't defend 18 counsel's actions in injecting race into the 19 proceeding -- 20 21 22 JUSTICE KENNEDY: That But the prosecutor revisited it, Mr. Keller, in cross-examination. MR. KELLER: To put that into context, the 23 prosecutor did not go beyond the scope of direct. 24 prosecutor saw the expert report for the first time that 25 day and had just reviewed it over the lunch hour. Alderson Reporting Company The This Official - Subject to Final Review 27 1 is JA154A and 165A. 2 through all of the various factors that Quijano had 3 considered in his testimony, but it did not go beyond 4 what was elicited on direct. 5 And the prosecutor is walking And to highlight an example in contrast, the 6 Alba case, in which we did confess error, there, the 7 prosecutor mentioned race four times, and at closing 8 said, quote, "And I went down all the indicators. 9 didn't want to talk about those indicators, but I did, 10 and I forced the issue. 11 That's at Volume 28 of the trial -- 12 They He's male, he's Hispanic," etc. JUSTICE GINSBURG: Doesn't -- doesn't the 13 fact that Petitioner's own counsel introduced this show 14 how abysmal his representation was? 15 should make a difference that the Petitioner's counsel 16 introduced this evidence. 17 agrees, should not have -- not have come in. 18 what -- what counsel would put that kind of evidence 19 before a jury? 20 evidence before a jury. 21 MR. KELLER: I don't know why it This evidence, everyone And -- and What competent counsel would put that And we are not defending 22 defense counsel's actions. But the nature of that claim 23 is a Sixth Amendment ineffective assistance claim that 24 the court also reviews for prejudice. 25 a prosecutor offering the testimony and using it as an Alderson Reporting Company In the context of Official - Subject to Final Review 28 1 aggravator, that would be an equal protection and due 2 process violation. 3 coming in, in that instance would be significantly 4 highly prejudicial when the State is putting its in 5 primata behind it and using it as an aggravator. 6 And the nature of the evidence JUSTICE SOTOMAYOR: Why does it matter who 7 uses race? I mean, in Batson challenges we don't care 8 if the person exercising a racial challenge is the 9 prosecutor or the defense attorney. We say neither 10 should use race in a negative way against a defendant. 11 So why is it different here? 12 for the prosecutor to introduce the greater likelihood 13 of a person being dangerous on the basis of race alone? 14 Not okay for the prosecutor, but it's less bad for the 15 defense attorney to do it? 16 MR. KELLER: 17 okay. 18 prejudice. 19 Yeah. Why is it okay or not okay To be clear, it's not The issue, though, goes to the level of And when defense counsel -JUSTICE SOTOMAYOR: Well, the level of 20 prejudice is the reasonable possibility that if one 21 juror, because Texas uses one juror does not agree with 22 death, death is not imposed, correct? 23 MR. KELLER: 24 JUSTICE SOTOMAYOR: 25 Correct. So if one -- is it a reasonable possibility that one juror, even the one who Alderson Reporting Company Official - Subject to Final Review 29 1 sent the note that says is it possible to do parole, 2 life without parole, could have been convinced to 3 exercise mercy if race wasn't used, can you answer that 4 question "absolutely not"? 5 Saldano cases, a man poured gasoline on a woman and 6 watched her die, we had a nation that was mortified, 7 shocked, and completely traumatized by watching a pilot 8 burn to death. 9 than this one? 10 When, in at least one of the So why is that crime any less heinous MR. KELLER: Here, Petitioner executed a 11 mother when she was on her knees in front of her 12 children with her daughter jumping on her -- 13 JUSTICE SOTOMAYOR: I don't say it's not, 14 but why is that heinousness so much greater that no jury 15 could have exercised mercy? 16 MR. KELLER: No juror. The standard -- the standard in 17 the Strickland second-prong prejudice analysis is 18 whether there is a substantial likelihood of a different 19 outcome. 20 have to rule out -- As Juan vs. Valmontez noted, the State doesn't 21 JUSTICE SOTOMAYOR: 22 is the actual language, not "substantial." 23 MR. KELLER: "Reasonable probability" And Harrington v. Richter said, 24 "The likelihood of a different result must be 25 substantial, not just conceivable." Alderson Reporting Company It's 562 U.S. at Official - Subject to Final Review 30 1 2 111. If I can address the jury deliberation point 3 for a moment: 4 deliberated over the course of two days, but this is 5 only for three hours and 13 minutes. 6 1918 to 1919. 7 police reports and the psychology reports. 8 second day, the jury asked to see the crime scene video. 9 This was JA210A, Record 5956 and Record 6333. 10 The Petitioner is correct the jury This is at Record On the first day, the jury asked for the On the So insofar as the Court were to look at the 11 circumstances of the jury's deliberations -- and I'm not 12 sure that that is necessary for the Court to do, but the 13 inference to be drawn is in this final 95 minutes before 14 the jury returned a verdict to future dangerousness. 15 was looking at the crime scene video. 16 CHIEF JUSTICE ROBERTS: It I'm not sure how the 17 quickness of the determination helps you at all, when 18 one response would be, well, they had this evidence that 19 he was, by virtue of his race, likely to be dangerous, 20 so they didn't spend that much time on it. 21 MR. KELLER: And the -- and the argument 22 here is that under these circumstances when they were 23 focused on the crime scene video, that would have been 24 what the jury -- 25 JUSTICE BREYER: We're not in the jury room. Alderson Reporting Company Official - Subject to Final Review 31 1 We do know that the prosecutor asked the expert witness, 2 is it correct that the race factor, black, increases the 3 future dangerousness for various complicated reasons. 4 And he says, yes. 5 So that seems -- I mean, you can't prove it, 6 that that was the key factor, but it seems like it could 7 have been a substantial factor. 8 cases, says this is totally wrong. 9 seventh case, you're taking the opposite position. And Texas, in six And now in this And 10 I have to admit, like what the Chief Justice seemed, I 11 don't understand the reason. 12 the arbitrariness of what's going on. 13 It seems to me it proves But regardless, the issue here is, is there 14 some good reason why this person shouldn't have been 15 able to reopen his case? 16 What's the reason? 17 I mean, that's the question. I mean, after all, we later decided these 18 other cases, Martinez. His circumstances seem to fit 19 Martinez pretty much like a glove. 20 doesn't have a strong interest any more than in the 21 other cases, or at least not obvious to me, some kind of 22 reliance. 23 apply. 24 much -- not too much reliance on the other side, and 25 seems to meet Martinez's criteria for hearing the issue. The State certainly So he has a case where Martinez seems to He couldn't -- he was diligent -- diligent, not Alderson Reporting Company Official - Subject to Final Review 32 1 Why doesn't that make it extraordinary 2 enough to reopen under Rule 60(b)? 3 question in the case. 4 MR. KELLER: That seems to me the For two reasons, and both are 5 controlled by Gonzalez v. Crosby. The first is that the 6 only changed circumstance in this case since 2006 is the 7 Martinez and Trevino change in the law. 8 is there was a lack of diligence in pursuing this claim. 9 An ineffective assistance claim is raised on Federal And the second 10 habeas in the district court. 11 on that claim. 12 also is not even raised in the first 60(b) motion. 13 14 And the ineffective assistance claim JUSTICE BREYER: And all this took place after this Court decided Martinez and Trevino? 15 16 The COA is not asked for MR. KELLER: In the context of the second 60(b) motion. 17 JUSTICE BREYER: Yeah, I mean, you listed a 18 whole bunch of things in which he could have done. Did 19 those take place or not after we decided our case? If 20 some of them did, which? 21 MR. KELLER: The Federal habeas petition 22 asking for a COA and the first 60 (b) motion were before 23 Martinez. 24 that there the Petitioner was not pursuing the claim 25 with diligence even before the change in the law. But in Gonzalez v. Crosby, the Court noted Alderson Reporting Company And Official - Subject to Final Review 33 1 the court said -- 2 JUSTICE KAGAN: He did exactly what you 3 would have expected him to do. 4 still on the books, you would have said it would be -- 5 had been improper for him to ask for the relief that you 6 are now suggesting that he should have asked for. 7 least it would have been futile with Coleman still on 8 the books. 9 MR. KELLER: Yeah. Given that Coleman was At Although the same would 10 have been said under existing precedent in Gonzalez v. 11 Crosby, there that the statue of limitations would have 12 run. 13 And so the essence -JUSTICE KAGAN: Isn't this substantially 14 different than Gonzalez? Wasn't it important in 15 Gonzalez that the nature -- what the nature of the error 16 was? 17 commonplace to -- lawyers misjudge time limits all the 18 time. 19 it's not commonplace. 20 the Quijano as defense witnesses never themselves raised 21 race as a cause -- as a reason for future dangerousness. 22 Only this attorney who's been disciplined repeatedly for 23 his malfeasance in representing clients, who one 24 newspaper said if you want to ensure a death penalty, 25 hire this lawyer. In Gonzalez what the court said, the error is The one thing we know about this error is that Even the two people who called In that situation, isn't this that Alderson Reporting Company Official - Subject to Final Review 34 1 rare case that Gonzalez talked about? 2 MR. KELLER: This is certainly an unusual 3 case. 4 in this posture, though, is not simply would an 5 appellate judge in the first instance conclude that, but 6 did the district court abuse its discretion in declining 7 to find extraordinary circumstances when Gonzalez v. 8 Crosby is on the books. 9 And the standard for extraordinary circumstances JUSTICE BREYER: Gonzalez v. Crosby, to my 10 understanding, involved a change in the AEDPA statute of 11 limitations; is that right? 12 MR. KELLER: 13 JUSTICE BREYER: 14 Correct. As soon as I say those words, I'm confused. 15 (Laughter.) 16 JUSTICE BREYER: I mean, there are all kinds 17 of statutes of limitations, and this is one of them that 18 the court said he didn't -- he didn't pursue the change 19 diligently, and besides, it wasn't that big a deal, and 20 not every interpretation of Federal statute setting 21 habeas requirements provides cause for reopening cases 22 long since filed, and the change was not extraordinary, 23 and it was because in part of Petitioner's lack of 24 diligence in pursuing it. 25 reasons there. There's a whole list of As I read those reasons, I don't think Alderson Reporting Company Official - Subject to Final Review 35 1 one of them applies here. 2 MR. KELLER: So which one applies here. Well, insofar as the 3 extraordinary circumstances analysis under 60(b) has 4 been performed, I believe the Fifth Circuit was correct 5 in that it has to be an extraordinary circumstance 6 justifying relief from the judgment. 7 of this case obviously have existed for over 20 years, 8 there's been nothing new about raising that claim in a 9 second rule 60(b) motion to reopen the judgment. And when the facts And so 10 in that sense, this is even further than Gonzalez v. 11 Crosby where that was just a 60(b) motion. 12 second 60(b) motion. 13 CHIEF JUSTICE ROBERTS: This is the I understand your 14 arguments on the merits, but do they apply equally to 15 the Certificate of Appealability? 16 that you should prevail on the merits. 17 on a Certificate of Appealability is whether there's 18 been a substantial showing of denial of a constitutional 19 right. I mean, you argue But the question 20 Assuming you haven't already seen the 21 analysis on the merits and you're looking at this 22 question for the first time before going through this 23 analysis, wouldn't it seem pretty straightforward to 24 say, okay, maybe he's right, maybe he's wrong, but at 25 least he's made a substantial showing. Alderson Reporting Company Let's give him a Official - Subject to Final Review 36 1 Certificate of Appealability, and then we'll go through 2 the normal procedures on the merits? 3 MR. KELLER: It's clearly a harder standard 4 for us under the Certificate of Appealability standard, 5 but even then you'd be asking would reasonable jurists 6 debate whether the district court abused its discretion 7 in declining to find extraordinary circumstances. 8 9 CHIEF JUSTICE ROBERTS: tougher and tougher. Well, that gets I mean, you're talking about 10 reasonable jurists debate. 11 very low threshold. 12 debate, whether there's been an abuse of discretion, I 13 mean, abuse of discretion gives a broad range to the 14 district court. 15 reasonable person out there who could debate that you 16 ought to have deferred to that exercise of discretion? 17 It seems to me, yes, it's a different standard, but it's 18 quite a different standard. 19 Okay. That's -- that's a But when you say reasonable jurists And now you're asking, well, is there a And the broader question here is whether the 20 Fifth Circuit applies the wrong standard on a 21 Certificate of Appealability, and it seems to me that if 22 you're going to say, particularly when you are reviewing 23 an abuse of discretion standard, that you're going to be 24 able to look at and say, no, no, there's nothing 25 substantial here. Alderson Reporting Company Official - Subject to Final Review 37 1 MR. KELLER: And I think this would be a 2 difficult case to infer anything widespread from the 3 Fifth Circuit's practice. 4 the substantial practice that was allowed here, the 5 Petitioner filed a 70-page opening brief. 6 filed a 37-page response brief, and Petitioner filed and 7 moved to file a 35-page reply brief. 8 also the third time that the Fifth Circuit had seen this 9 case. 10 Just to put some context into CHIEF JUSTICE ROBERTS: The State And so this was You know, I guess my 11 question kind of cuts the other way. 12 don't -- yes, and you make the point, there was a 13 substantial amount of process. 14 consideration. 15 have thought the purpose of a Certificate of 16 Appealability would be to make the decision to move 17 forward without all that elaborate process? 18 I'm saying they There was a long There was a lot of briefing. MR. KELLER: I would Well, and the Fifth Circuit on 19 occasion hears oral argument in considering whether to 20 grant a COA in the capital posture insofar as the court 21 would provide or believe that that is not the type of 22 process that should be afforded at the COA stage, in 23 accordance with AEDPA -- 24 25 JUSTICE SOTOMAYOR: Oral argument -- oral argument on whether to grant the COA? Alderson Reporting Company Official - Subject to Final Review 38 1 MR. KELLER: Yes. The Fifth Circuit on 2 occasion -- this is page 50 and 51 of our Respondent's 3 brief -- will hear oral argument -- 4 JUSTICE KAGAN: Mr. Keller, you know, some 5 of the statistics that Petitioner have pointed us to -- 6 in capital cases, a COA is denied in 60 percent of Fifth 7 Circuit cases as compared to 6 percent of Eleventh 8 Circuit cases, two roughly similar circuits where COA's 9 are denied in capital cases ten times more in the Fifth 10 Circuit. I mean, it does suggest one of these two 11 circuits is doing something wrong. 12 MR. KELLER: And the court has said that the 13 COA should serve a gatekeeping function. The court also 14 noted that death is different. 15 the Fifth Circuit is provided substantial process. 16 insofar, though, as this Court were to -- if it were 17 going to conclude in this case that a COA should have 18 issued, it -- any such decision, I think, would be 19 limited to the unique facts of this case. 20 think there's anything that could be drawn by the Fifth 21 Circuit's wider practice in denying or granting COAs, 22 particularly in the capital posture when substantial 23 process is being afforded. 24 where the Fifth Circuit is simply ignoring these cases 25 and ignoring these claims. And at the same time, Now, And I don't This is not a situation Quite the opposite. Alderson Reporting Company Official - Subject to Final Review 39 1 CHIEF JUSTICE ROBERTS: So is your 2 suggestion that they deny more because they've taken up 3 more search and look at the merits than the other 4 circuits? 5 MR. KELLER: I think it -- insofar as the 6 statistics could be shown that there is, in fact, a 7 different denial and grant rate, I think the level of 8 process that the Fifth Circuit is receiving and -- and 9 the quantum of argument may be going to those 10 statistics, because the Fifth Circuit is not simply 11 ignoring these claims. 12 And even here -- JUSTICE KAGAN: But this is the whole point, 13 really. 14 when you decide an appeal. 15 actually don't have jurisdiction to decide the appeal. 16 I mean, they are supposed to be performing a gatekeeping 17 function, not deciding the merits of the case. 18 They are not supposed to be doing what you do MR. KELLER: And they -- and they And I don't think what the 19 Fifth Circuit did here is decide the merits. 20 correctly articulated the COA standard, and it examined 21 the 11 facts that Petitioner alleged as a basis for 22 ruling on the 60(b) motion. 23 essentially the underlying and effective assistance 24 claim, and if the Fifth Circuit had -- 25 It Now, five of those were JUSTICE SOTOMAYOR: It doesn't say anything Alderson Reporting Company Official - Subject to Final Review 40 1 to the Fifth Circuit that three State court judges, two 2 of their colleagues on the Fifth Circuit, two justices 3 of this Court, have said or found Mr. Buck's case 4 debatable, because that's the standard. 5 They don't pause and say, you know, people have some 6 basis for an argument here? 7 This is a serious question. 8 9 MR. KELLER: This is not frivolous. And the Fifth Circuit took these arguments seriously. 10 It's debatable. And this is our response -- JUSTICE SOTOMAYOR: That's not the issue. 11 They are supposed to decide whether to grant COA or not 12 on whether the questions are serious or not, debatable, 13 not decide the merits. 14 in some situations, but how do you justify saying that 15 this is not debatable? 16 MR. KELLER: I know it can appear a fine line Here the issue would be could 17 reasonable jurists debate whether the district court 18 abused its discretion in finding extraordinary 19 circumstances? 20 And so while the reasonable jurist standard 21 is lower, that's balanced, though, against the more 22 deferential abuse of discretion standard and the 23 heightened extraordinary circumstances standard that 24 this Court has noted will rarely be met in the habeas 25 context. Alderson Reporting Company Official - Subject to Final Review 41 1 In our brief we present a few examples of 2 courts finding extraordinary circumstances. 3 be when counsel wholly abandons a Petitioner, or a 4 prison guard actively thwarts a Petitioner filing a 5 habeas petition. 6 7 Now, we don't mean to suggest those are the only instances in which that can give rise to -- 8 9 10 JUSTICE GINSBURG: There -- there were extraordinary circumstances in the other cases? In the other five cases? 11 12 That would MR. KELLER: In the other five cases in which the State confessed error? 13 JUSTICE GINSBURG: 14 MR. KELLER: Yes. Well, there we admit that since 15 the prosecution was the one that was eliciting the 16 race-based testimony, that that would go to a -- a due 17 process and equal protection violation, and that would 18 be an extraordinary circumstance -- 19 JUSTICE KAGAN: But if you said that that's 20 because those -- that's -- it's more prejudicial when 21 the prosecution introduces this? 22 -- 23 MR. KELLER: 24 JUSTICE KAGAN: 25 Is that what you said Yes. -- to Justice Ginsburg? That -- that's your basic theory? Alderson Reporting Company Official - Subject to Final Review 42 1 2 MR. KELLER: The State was using it as an aggravator. 3 JUSTICE KAGAN: Yeah. 4 that makes it more prejudicial. 5 theory? 6 MR. KELLER: 7 JUSTICE KAGAN: But -- and -- and That's your basic Both points. The State -- Because I don't -- I guess 8 if there's both points, tell me what the other point is 9 because I guess I just don't understand that point. But 10 it seems more prejudicial when the defense attorney uses 11 it. 12 I mean, prosecution, you have a jury sitting 13 there, and it realizes that the prosecutor has an 14 interest in convicting a person and in getting a -- a 15 sentence that the prosecution wants, so everything is 16 discounted a little bit. 17 defendant's own lawyer introduces this, the jury is 18 going to say, well, it must be true. 19 defendant's lawyer thinks that this is true. 20 know, who a.m. I to -- to argue with that? 21 wildly more prejudicial to me when the defense attorney 22 introduces it. 23 MR. KELLER: But when your own -- when the Even the So, you It seems Except it's not the case here 24 that Quijano was only testifying about race. 25 said that it would be unlikely the Petitioner would be a Alderson Reporting Company Quijano Official - Subject to Final Review 43 1 future danger. 2 multiple other aspects of his testimony, was favorable 3 to Petitioner, as Petitioner conceded. 4 circumstance, the prejudice would not be nearly as great 5 as when the State is injecting race into a proceeding. 6 And so Quijano's ultimate conclusion, in JUSTICE ALITO: And so in that I didn't think that your 7 primary argument had to do with the -- the relative 8 prejudice of having it done by the prosecutor and the 9 defense attorney. I thought your argument was that the 10 State of Texas feels a certain -- feels a special 11 responsibility when one of its employees engages in this 12 misconduct. 13 introduced by the defendant's attorney, it's an 14 ineffective assistance-of-counsel question, and it has 15 to be adjudicated under the Strickland test. 16 And when the -- when the evidence is MR. KELLER: That's absolutely correct. And 17 then when you look at the aggravating evidence of 18 executing a mother in front of her children and laughing 19 about it, and saying that the mother, quote, "got what 20 she deserved," unquote, and when we put in evidence from 21 ex-girlfriend -- this is a JA127A -- of repeatedly 22 beating her and threatening her with a gun, all of those 23 go to whether there would in fact be prejudice under the 24 Sixth Amendment, ineffective -- 25 JUSTICE KAGAN: Yes. And the legal question Alderson Reporting Company Official - Subject to Final Review 44 1 here, right, is whether this ineffective assistance of 2 counsel claim, which has never been heard by any court, 3 is a strong one. 4 ineffective assistance here is likely to be prejudicial, 5 which it seems as though it's -- it's far more likely to 6 be prejudicial when the defense counsel does it. 7 And a strong one including that the MR. KELLER: Justice Kagan, when the State 8 is the one injecting race into a proceeding, that's 9 using it as an aggravator. 10 JUSTICE KAGAN: And if the Court will -People expect the State to 11 use whatever aggravators it has at hand. 12 don't expect the State to do something as improper as 13 this, but the people who understand that not everything 14 that the prosecution says about a defendant, you know, 15 that people -- the jurors should -- should think about 16 those claims seriously because the prosecution has 17 interests of its own. 18 interests are supposed to be with the defendant. 19 Now, people But the defense counsel's I'm just repeating myself. If the defense 20 counsel does it, I mean, you know, who is the jury to 21 complain? 22 MR. KELLER: Well, this Court, I don't 23 believe, has ever recognized a situation in which a 24 defense counsel's act could give rise to structural 25 error or per se prejudice. And any such rule, I Alderson Reporting Company Official - Subject to Final Review 45 1 believe, would invite gamesmanship. 2 prejudice analysis can still be done, but to say whether 3 it would be per se prejudicial, I think it would have to 4 be balanced against the aggravating evidence. 5 the context of Quijano testifying helpfully to 6 Petitioner, that there would be an unlikely event of it 7 being a future danger. 8 9 CHIEF JUSTICE ROBERTS: Of course the And in What is the relationship between the ruling on prejudice with 10 respect to ineffective assistance and the 60(b) 11 analysis? 12 your submission on prejudice under Strickland, that your 13 60(b) analysis kind of falls apart? 14 MR. KELLER: 15 CHIEF JUSTICE ROBERTS: I mean, do you agree that if we disagree with I -Clearly the 16 underlying claim on the merits would be stronger, and -- 17 and it would be a lot more extraordinary under 60(b). 18 MR. KELLER: It is a factor that could be 19 considered in doing the extraordinary circumstances 20 analysis, because if there were extraordinary 21 circumstances that were going to justify, really, from 22 the judgment, that would be a factor in the totality of 23 the circumstances the Court would be -- it could 24 consider in doing that analysis. 25 If you have no further questions, we'd ask Alderson Reporting Company Official - Subject to Final Review 46 1 the Court to affirm the judgment of the Fifth Circuit. 2 CHIEF JUSTICE ROBERTS: Thank you, counsel. 3 Ms. Swarns, you have four minutes remaining. 4 REBUTTAL ARGUMENT OF CHRISTINA A. SWARNS 5 ON BEHALF OF THE PETITIONER 6 MS. SWARNS: This Court has long recognized 7 that the integrity of the courts requires unceasing 8 events to eradicate racial prejudice from our criminal 9 justice system. 10 That commitment is as urgent today as at any time in our nation's history. 11 Duane Buck's case requires meaningful 12 Federal review of his claim that his trial counsel 13 knowingly introduced an expert opinion that he was more 14 likely to commit criminal acts of violence in the 15 future, a Certificate of Appealability should certainly 16 issue. 17 With respect to -- to Texas's arguments, I 18 want to begin by making clear that, first of all, this 19 Court in Georgia v. McCollum did make clear, as I think 20 Justice Sotomayor noted, that the equal protection 21 concerns that are implicated by the introduction of race 22 into the criminal justice system absolutely are 23 triggered by defense counsel's conduct. 24 that was a situation where defense counsel exercised 25 preemptory challenges based on race. Alderson Reporting Company And certainly Official - Subject to Final Review 47 1 And in that circumstance, that was actually 2 an exercise of peremptory challenges intended to benefit 3 the client, right? 4 gain advantage by using a race-based peremptory 5 challenges. 6 They were trying to strategically Here, we have trial counsel making an 7 inexplicable decision to introduce -- a knowing, 8 inexplicable decision to introduce race. 9 certainly worse and more aggravating for Mr. Buck. 10 This is I would also like to just be clear that the 11 prosecution's reliance on Dr. Quijano's testimony here 12 was real. 13 prosecutor was required to follow up on Dr. Quijano's 14 opinion and -- and reiterate it on cross-examination, 15 and then go further and argue in closing that the jury 16 should rely on Dr. Quijano to find Mr. Buck likely to 17 commit criminal acts of violence, and further argue that 18 the jury should disregard the aspects of Dr. Quijano's 19 opinion that conflicted with a finding of future 20 dangerousness. 21 This wasn't a circumstance where the When Texas did its -- its review of -- of 22 death row after it conceded error in Saldano, it looked 23 through all of the cases on death row to see what else 24 was contaminated by Dr. Quijano's racist criminal 25 violence opinion. And one of the other cases it looked Alderson Reporting Company Official - Subject to Final Review 48 1 at and ruled out was the Anthony Graves case, which 2 demonstrates the options available to this prosecutor 3 under these circumstances. 4 In the Anthony Graves case, Dr. Quijano was 5 called as a defense witness, just like he was here. In 6 the Anthony Graves case, the defense elicited 7 Dr. Quijano's race as criminal violence opinion on 8 direct examination, just as here. 9 in the Graves case, the prosecutor did not reiterate it But the difference is 10 on direct examination, and -- and then in closing argued 11 that the jury should disregard Dr. Quijano's opinion. 12 The prosecutor here absolutely capitalized 13 on trial counsel's error. 14 about that. 15 could have gone the Graves route, but this prosecutor 16 chose to go through the door that was opened by trial 17 counsel and rely on Dr. Quijano's race as criminal 18 violence opinion. 19 There is just no question They made a choice that, you know, they Counsel for Texas also notes that the last 20 note that the jury sent out was a request to review the 21 crime scene video, which is absolutely true, but it 22 means that the last two notes that this jury looked 23 at -- the two -- two things that they asked for, right, 24 was the expert's report. 25 then we have the crime. So we now have the race, and Alderson Reporting Company Official - Subject to Final Review 49 1 This is exactly the circumstance that this 2 Court addressed in Turner. 3 of the crime that trigger this racialized fear of 4 violence and raised the real risk of an arbitrary death 5 sentencing decision, and then you have the report which 6 compounds that risk because it gives a defense expert 7 scientific imprimatur to that pernicious group-based 8 stereotype. 9 Mr. Buck. 10 Right? You have the facts So that is further evidence of prejudice to Last, I would just be clear that when 11 Mr. Buck litigated his first 60(b) motion, Coleman, 12 as -- as Texas has acknowledged, stood as an unqualified 13 bar. 14 announced, for him to argue. There was no opportunity, before Martinez was 15 Thank you. 16 CHIEF JUSTICE ROBERTS: 17 The case is submitted. 18 (Whereupon, at 12:02 p.m., the case in the 19 Thank you, counsel. above-entitled matter was submitted.) 20 21 22 23 24 25 Alderson Reporting Company Official - Subject to Final Review 50 A a.m 1:17 3:2 21:20 42:20 abandons 41:3 able 22:9,25 31:15 36:24 above-entitled 1:15 49:19 absence 7:20 absolute 20:25 absolutely 12:9 17:5 24:19 29:4 43:16 46:22 48:12,21 abuse 34:6 36:12,13,23 40:22 abused 36:6 40:18 abysmal 27:14 acknowledge 14:21 acknowledged 4:13,22 49:12 acknowledging 7:19 13:4 act 44:24 actions 26:18 27:22 actively 41:4 acts 3:13 4:5 19:14 21:25 23:21 24:2 46:14 47:17 actual 19:23 29:22 add 13:6 17:19 additional 17:22 additionally 13:2 address 30:2 addressed 49:2 adhered 18:2 adjudicated 43:15 adjustment 24:25 admit 31:10 41:14 admitted 26:11 advantage 47:4 adversaries 8:22 AEDPA 34:10 37:23 affirm 46:1 afforded 37:22 38:23 aggravated 18:25 19:6 aggravating 19:18 43:17 45:4 47:9 aggravator 26:16 28:1,5 42:2 44:9 aggravators 44:11 agree 11:6 17:4 28:21 45:11 agrees 27:17 aisle 22:20 Alba 27:6 Alito 10:9 11:20 18:9 24:6,14 24:16 43:6 alleged 39:21 allow 4:15 allowed 37:4 alternative 24:3 Amendment 27:23 43:24 amount 37:13 amplifies 18:3 analysis 7:7,22 15:16 16:1 29:17 35:3,21 35:23 45:2,11 45:13,20,24 announced 49:14 answer 11:20 12:19 16:17 20:10 22:17 29:3 Anthony 48:1,4 48:6 apart 45:13 appeal 10:25 23:5 39:14,15 Appealability 5:10,11,14,17 5:25 6:2,5,14 6:17,19,22 7:5 7:8,22 8:16 14:10 15:21 17:19 35:15,17 36:1,4,21 37:16 46:15 appeals 15:2 16:11 appear 40:13 APPEARAN... 1:18 appellate 34:5 applicability 9:23 10:1 application 17:23 18:2,7 applies 35:1,1 36:20 apply 4:14 9:5 9:22,25 11:22 17:17 26:9 31:23 35:14 applying 17:8 appointed 3:11 approach 7:4 approaches 14:10 approaching 16:20 appropriate 14:25 arbitrariness 31:12 arbitrary 19:3 19:10 49:4 argue 8:2 35:15 42:20 47:15,17 49:14 argued 48:10 arguing 5:1 10:5 argument 1:16 2:2,5,8 3:3,6 9:4 10:12 25:19 30:21 37:19,24,25 38:3 39:9 40:6 43:7,9 46:4 arguments 35:14 40:9 46:17 arises 9:24 24:22 arrested 18:22 articulate 14:17 articulated 39:20 asked 19:24 20:1,17 30:6,8 31:1 32:10 33:6 48:23 asking 21:23 32:22 36:5,14 aspects 43:2 47:18 assessing 7:14 assessment 14:24 assistance 13:7 27:23 32:9,11 39:23 44:1,4 45:10 assistance-of-c... 43:14 assume 13:12 26:2,3 Assuming 35:20 attorney 28:9,15 33:22 42:10,21 43:9,13 attorneys 3:11 Austin 1:21 authority 26:14 available 17:13 48:2 Alderson Reporting Company B b 32:22 back 8:6 10:4 15:21 bad 28:14 balanced 40:21 45:4 bar 49:13 based 3:17,19 18:10 46:25 basic 8:3 41:25 42:4 Basically 8:25 basis 14:9 28:13 39:21 40:6 Batson 28:7 beating 43:22 begun 5:5 behalf 1:19,22 2:4,7,10 3:7 25:20 46:5 believe 3:25 6:3 13:21 15:24 35:4 37:21 44:23 45:1 bell 23:8 benefit 47:2 best 16:19 beyond 16:8 25:10 26:23 27:3 bias 4:23 10:25 11:7 13:25 14:6 23:5 big 34:19 bit 42:16 bizarre 18:15 black 3:14 19:15 22:1 31:2 books 33:4,8 34:8 breakdown 24:22 BREYER 30:25 32:13,17 34:9 34:13,16 Official - Subject to Final Review 51 brief 9:10 12:2 10:23 11:4,11 14:13 37:5,6,7 11:21,22 13:3 38:3 41:1 13:12,24 14:8 briefing 5:1,5 14:11,19,22 37:14 15:3 16:10,15 bring 11:17 16:18,24 17:24 broad 36:13 18:19 19:5,16 broader 36:19 21:2 22:10,13 broadly 12:16 22:20,22 23:9 Buck 1:3 3:4,10 23:16 25:8 3:25 4:2,4,5,11 26:8 27:6 31:9 4:20 5:16 6:4 31:15,22 32:3 6:12,13 8:11 32:6,19 34:1,3 8:15 10:2,2,3 35:7 37:2,9 11:9,16 19:7 38:17,19 39:17 19:14 21:17,18 40:3 42:23 21:24 22:18 46:11 48:1,4,6 23:10,13,21,24 48:9 49:17,18 24:1,25 47:9 cases 4:16,19 47:16 49:9,11 6:20 10:14 Buck's 3:18 4:17 11:17 13:15 4:19 7:10,17 14:15 26:3 10:23 11:8,11 29:5 31:8,18 13:3,5,7,12 31:21 34:21 18:21 19:15 38:6,7,8,9,24 22:5 40:3 41:9,10,11 46:11 47:23,25 bunch 32:18 categories 23:17 burdensome 5:4 cause 8:25 10:6 burn 29:8 33:21 34:21 center 7:10 C centers 7:24 C 2:1 3:1 central 3:16 calculus 20:22 7:16 called 6:16 certain 9:12 33:19 48:5 43:10 capital 4:16 certainly 14:2 10:14 11:22 14:18 15:15 37:20 38:6,9 18:17,18 23:2 38:22 31:19 34:2 capitalized 46:15,23 47:9 48:12 Certificate 5:10 care 28:7 5:11,13,17,24 case 3:4 4:19 5:6 6:2,5,14,17,18 6:16 7:6,8,17 6:22 7:5,8,21 7:20,23,25 8:16 15:20 8:14 10:10,19 35:15,17 36:1 36:4,21 37:15 46:15 Certificates 14:10 17:18 challenge 28:8 challenges 28:7 46:25 47:2,5 change 13:11 32:7,25 34:10 34:18,22 changed 32:6 changes 20:21 characteristics 25:14 checked 20:11 chest 25:25 Chief 3:3,8 4:25 5:22 6:6 7:2 11:19 12:6,10 12:13,18,23 14:7 15:1,13 15:18 16:7 17:16 25:17,21 26:2 30:16 31:10 35:13 36:8 37:10 39:1 45:8,15 46:2 49:16 children 25:25 29:12 43:18 choice 5:7 48:14 chose 48:16 CHRISTINA 1:19 2:3,9 3:6 46:4 circuit 5:3,18 7:3,15 8:10 9:9 9:11,14 11:13 14:10,14 15:25 16:19 17:8,11 17:17,24 18:1 18:6,10 35:4 36:20 37:8,18 38:1,7,8,10,15 38:24 39:8,10 39:19,24 40:1 40:2,8 46:1 Circuit's 7:7,21 37:3 38:21 circuits 14:15 38:8,11 39:4 circumstance 8:24 9:13 10:2 13:21 19:8 32:6 35:5 41:18 43:4 47:1,12 49:1 circumstances 3:18 9:12 17:7 18:8,20 30:11 30:22 31:18 34:3,7 35:3 36:7 40:19,23 41:2,9 45:19 45:21,23 48:3 claim 7:10 10:7 10:15 13:7 27:22,23 32:8 32:9,11,11,24 35:8 39:24 44:2 45:16 46:12 claims 11:10 15:4 22:10 38:25 39:11 44:16 clear 15:16 17:23 28:16 46:18,19 47:10 49:10 clearly 24:19 36:3 45:15 client 47:3 clients 33:23 closely 15:14 closing 27:7 47:15 48:10 COA 5:3 8:3,5,7 8:21,21,24 15:16 16:4,4,8 16:21 17:2,11 18:2,8 32:10 32:22 37:20,22 37:25 38:6,13 Alderson Reporting Company 38:17 39:20 40:11 COA's 38:8 COAs 38:21 Coleman 33:3,7 49:11 colleagues 40:2 come 27:17 coming 28:3 commit 3:12 4:1 4:4 19:14 21:25 23:21 24:2 46:14 47:17 commitment 46:9 committed 18:12 25:4 commonplace 33:17,19 compared 38:7 competent 27:19 complain 44:21 completely 7:7 29:7 complicated 31:3 composition 22:22 compounded 19:19 compounding 19:12 compounds 19:6 49:6 compromised 4:22 13:25 conceded 4:18 43:3 47:22 conceivable 29:25 concern 26:12 concerned 21:14 concerns 10:11 46:21 concessions 13:19 Official - Subject to Final Review 52 conclude 6:11 34:5 38:17 conclusion 14:22 26:9 43:1 condemned 3:10 conduct 7:21 15:2 18:13 46:23 conducting 7:21 confess 27:6 confessed 41:12 confidence 4:23 7:12 confirm 22:25 conflicted 47:19 confused 34:14 consider 20:2 45:24 considerable 15:3 consideration 37:14 considered 14:24 27:3 45:19 considering 17:18 20:5 21:21 37:19 consistently 11:9 constitute 8:23 constitutional 5:20 9:22 16:10,14 35:18 contains 21:24 contaminated 47:24 context 9:24 12:24 24:19 25:13 26:22 27:24 32:15 37:3 40:25 45:5 continuum 4:3 contrast 27:5 controlled 32:5 convicting 42:14 convinced 29:2 core 14:4 corpus 10:8 correct 18:16 20:6,18 28:22 28:23 30:3 31:2 34:12 35:4 43:16 CORRECTI... 1:8 Corrections 25:4 correctly 21:2 39:20 counsel 10:6 13:7,14 25:17 27:13,15,18,19 28:18 41:3 44:2,6,20 46:2 46:12,24 47:6 48:17,19 49:16 counsel's 26:18 27:22 44:17,24 46:23 48:13 Counselor 19:20 course 4:19 6:18 22:1 30:4 45:1 court 1:1,16 3:9 3:11 5:17,19 8:2,11,15,18 12:1 13:10 15:2,15,24,25 16:2,4,11,13 16:20 17:5,22 17:25 18:3,6 18:25 25:22 27:24 30:10,12 32:10,14,23 33:1,16 34:6 34:18 36:6,14 37:20 38:12,13 38:16 40:1,3 40:17,24 44:2 44:9,22 45:23 46:1,6,19 49:2 court's 6:4,12 7:13,15,18 11:2 16:5 courts 4:12 11:18 14:1,20 14:23 16:3 17:14 23:6 41:2 46:7 crime 3:18 18:21 18:22 19:9 23:18 29:8 30:8,15,23 48:21,25 49:3 crimes 4:1 19:1 25:2 criminal 1:7 3:13 4:4,18,23 19:14 21:25 23:21 24:2 46:8,14,22 47:17,24 48:7 48:17 criteria 31:25 critical 3:15 7:17,22 Crosby 32:5,23 33:11 34:8,9 35:11 cross-examina... 3:24 22:3 26:21 47:14 cuts 37:11 data 18:3 daughter 29:12 Davis 1:6 3:4 day 26:25 30:6,8 days 22:14 30:4 deal 34:19 death 3:10,16 4:21 7:12 11:1 11:4,5 12:21 13:5 14:5 19:3 19:10 22:5 23:12,15 24:3 25:23 26:6 28:22,22 29:8 33:24 38:14 47:22,23 49:4 debatability 7:14 debatable 5:21 5:24 16:5 17:7 40:4,4,12,15 debate 36:6,10 36:12,15 40:17 decide 39:14,15 39:19 40:11,13 decided 31:17 32:14,19 deciding 39:17 decision 3:15 5:19 6:4,12 7:15 15:19 16:5 19:11 D 22:5,6,9,12 D 3:1 37:16 38:18 D.C 1:12 47:7,8 49:5 danger 3:23 decisions 18:1 43:1 45:7 19:4 dangerous 22:18 declared 4:14 25:12,15 28:13 declining 34:6 30:19 36:7 dangerousness deep 14:22 3:15 18:14,18 default 9:8 10:6 22:11 23:11,13 defaulted 10:16 24:7 25:9 defend 18:10 26:15 30:14 26:17 31:3 33:21 defendant 28:10 47:20 44:14,18 Alderson Reporting Company defendant's 42:17,19 43:13 defending 25:23 27:21 defense 13:14 26:11,17 27:22 28:9,15,18 33:20 42:10,21 43:9 44:6,17 44:19,24 46:23 46:24 48:5,6 49:6 defenses 4:15 deferential 40:22 deferred 36:16 deliberated 30:4 deliberation 30:2 deliberations 30:11 demonstrates 17:24 18:4 48:2 denial 15:9 35:18 39:7 denied 8:3 38:6 38:9 deny 39:2 denying 8:7 10:17 38:21 Department 1:7 25:3 deserved 43:20 determination 7:9 30:17 determine 5:15 5:18 15:4 22:17 determined 26:5 determining 14:25 16:11 die 29:6 difference 27:15 48:8 differences 26:8 different 12:21 Official - Subject to Final Review 53 12:24 14:2 28:11 29:18,24 33:14 36:17,18 38:14 39:7 difficult 37:2 diligence 11:9 32:8,25 34:24 diligent 31:23 31:23 diligently 34:19 direct 22:2 26:23 27:4 48:8,10 DIRECTOR 1:6 disagree 6:8 13:23,23 45:11 disciplined 33:22 discounted 42:16 discourage 13:18,22 discretion 34:6 36:6,12,13,16 36:23 40:18,22 discretionary 13:18 discrimination 7:11 disputed 3:17 disregard 47:18 48:11 distinction 11:23 26:13 district 5:19 6:3 6:11 7:15 8:18 15:25 16:5 32:10 34:6 36:6,14 40:17 DIVISION 1:9 doing 38:11 39:13 45:19,24 domestic 18:23 23:19 door 10:19 48:16 doubled 19:16 Dr 3:25 19:19 21:15 23:25,25 24:5,24 25:7 25:13 47:11,13 47:16,18,24 48:4,7,11,17 draw 11:23 drawn 30:13 38:20 Duane 1:3 3:10 46:11 due 28:1 41:16 E E 2:1 3:1,1 EDWARD 1:3 effective 39:23 effectively 10:21 effectiveness 10:7 eight-part 9:15 elaborate 37:17 Eleventh 38:7 elicited 27:4 48:6 eliciting 41:15 eligibility 21:13 eligible 21:4 employees 43:11 encouraged 3:14 engage 7:16 8:4 engaged 8:5 engages 43:11 ensure 33:24 entitled 5:16 6:5 6:13 8:11,15 equal 28:1 41:17 46:20 equally 35:14 equivalent 26:16 eradicate 46:8 err 15:13 erred 15:19 error 4:18 15:6 27:6 33:15,16 33:18 41:12 44:25 47:22 48:13 ESQ 1:19,21 2:3 2:6,9 essence 33:12 essentially 6:23 19:16 39:23 establish 14:4 establishes 25:14 evaluation 14:23 17:14 event 45:6 events 24:22 46:8 evidence 3:14 4:10 18:12,18 18:20 19:18 22:1,19 23:4,6 23:9,14,16,18 23:23 24:7,24 25:10,12,13 26:10,15 27:16 27:16,18,20 28:2 30:18 43:12,17,20 45:4 49:8 ex-girlfriend 24:23 43:21 exact 10:4 exactly 19:1 24:18 33:2 49:1 examination 48:8,10 examined 39:20 example 6:15 18:6 27:5 examples 41:1 exceptional 8:23 9:7,13 exclusively 18:15 excuse 10:6 executed 23:10 23:14 29:10 executing 43:18 execution 4:21 11:3,4 12:5 exercise 29:3 36:16 47:2 exercised 29:15 46:24 exercising 28:8 existed 35:7 existing 33:10 expect 44:10,12 expected 22:12 33:3 expert 3:12,21 18:15 19:11,13 26:24 31:1 46:13 49:6 expert's 4:10,17 48:24 expired 5:16 explain 16:2 explanations 8:17 explicit 23:5 express 10:24 extent 14:8 extraordinari... 11:25 extraordinary 14:19,20 16:18 17:15 32:1 34:3,7,22 35:3 35:5 36:7 40:18,23 41:2 41:9,18 45:17 45:19,20 45:22 factors 10:23 11:11,25 13:9 14:24 27:2 facts 3:18 7:22 14:4 17:6 18:20 19:6,9 19:17 26:3,3 35:6 38:19 39:21 49:2 failed 14:20 fair 8:12 falls 45:13 false 3:19 far 18:6 44:5 favor 5:8 10:19 favorable 43:2 fear 19:2 49:3 feasibility 21:1 Federal 11:18 32:9,21 34:20 46:12 feels 43:10,10 Fifth 5:2,17 7:3 7:6,15,20 8:9 9:16 14:9,13 15:24 16:19 17:8,11,17,24 18:1,6,10 35:4 36:20 37:3,8 37:18 38:1,6,9 38:15,20,24 39:8,10,19,24 40:1,2,8 46:1 file 37:7 F filed 34:22 37:5 face 4:21 19:5 37:6,6 faces 11:3,4 filing 41:4 facing 12:5 fills 25:11 fact 13:6 17:5,7 final 30:13 18:4 19:5 finality 4:14 21:10,24 22:13 7:20 13:4 23:22 24:20 find 9:13 17:6 27:13 39:6 23:13 34:7 43:23 36:7 47:16 factor 12:24 finding 40:18 31:2,6,7 45:18 41:2 47:19 Alderson Reporting Company Official - Subject to Final Review 54 fine 40:13 first 9:3 10:7,24 12:3 20:23 26:24 30:6 32:5,12,22 34:5 35:22 46:18 49:11 fit 23:16 31:18 five 4:18 39:22 41:10,11 focus 5:2,8,10 focused 5:6 30:23 follow 47:13 forced 27:10 foremost 10:24 forgive 9:7 forward 37:17 fought 21:11 found 17:6 40:3 four 27:7 46:3 frivolous 40:6 front 25:24 29:11 43:18 function 38:13 39:17 fundamental 13:24 further 35:10 45:25 47:15,17 49:8 futile 33:7 future 3:13,15 3:22,23 4:1 18:14,18 22:11 23:11,13 25:9 30:14 31:3 33:21 43:1 45:7 46:15 47:19 future-danger... 22:6 G G 3:1 gain 47:4 gamesmanship 45:1 gang 25:5 gap 25:11 gasoline 29:5 gatekeeping 38:13 39:16 general 1:21 14:12,17 Georgia 46:19 getting 25:5 42:14 Ginsburg 3:21 4:6 21:3,7 22:21 27:12 41:8,13,24 give 35:25 41:7 44:24 given 20:25 21:7 21:10 33:3 gives 36:13 49:6 glove 31:19 go 8:5 26:23 27:3 36:1 41:16 43:23 47:15 48:16 goes 17:10 25:10 28:17 going 3:22 11:17 15:25 31:12 35:22 36:22,23 38:17 39:9 42:18 45:21 Gonzalez 32:5 32:23 33:10,14 33:15,16 34:1 34:7,9 35:10 good 31:14 gotten 5:24 6:1 6:18,22 government 26:14 governs 9:21 grant 37:20,25 39:7 40:11 granted 10:3 granting 38:21 grants 14:14 Graves 48:1,4,6 48:9,15 great 43:4 greater 28:12 29:14 group 13:9 group-based 3:20 49:7 guard 41:4 guess 12:18 37:10 42:7,9 guidance 13:10 14:23 17:10 gun 25:25 43:22 H habeas 9:24 10:7,17 32:10 32:21 34:21 40:24 41:5 hand 23:24 44:11 hands 22:7,19 hard 12:23 21:11 harder 36:3 Harrington 29:23 hear 3:3 38:3 heard 22:2 44:2 hearing 8:12 31:25 hearings 4:16 hears 37:19 heart 7:7 18:19 heavily 23:15 heightened 40:23 heinous 26:4 29:8 heinousness 29:14 held 25:2 helpfully 45:5 helps 30:17 higher 14:15 highlight 27:5 highlights 25:7 highly 28:4 hire 33:25 Hispanic 27:10 history 3:19 25:1 46:10 holding 19:4 Honor 13:2 21:2 22:24 hour 26:25 hours 30:5 hundred 23:6 increases 31:2 indefensible 10:11 11:6 indicators 27:8 27:9 individual 3:17 ineffective 13:7 27:23 32:9,11 43:14,24 44:1 44:4 45:10 ineffective-ass... 10:15 inexplicable I 47:7,8 idea 19:13 infer 37:2 identified 12:1 inference 30:13 ignored 7:7,22 information ignoring 38:24 17:13 21:1,8 38:25 39:11 21:10,12 immediately injecting 26:18 18:22 43:5 44:8 immutable injects 26:17 25:14 injustice 12:3,7 impairing 12:15 12:15 impairs 12:19 inquiry 15:3 implicated 16:21 17:2 46:21 insofar 30:10 implications 35:2 37:20 10:12 38:16 39:5 important 33:14 instance 28:3 imposed 28:22 34:5 imposing 5:3 instances 41:7 impossible 23:7 instant 18:21,22 imprimatur institutional 49:7 24:25 imprint 22:7 INSTITUTIO... improper 5:4 1:8 33:5 44:12 integrity 4:12 improperly 8:3 7:13,18 11:1,2 incarcerated 12:16,20 13:25 25:1 46:7 incidents 18:23 intended 47:2 including 4:16 interest 4:13 44:3 13:5 14:5 incorrect 6:13 31:20 42:14 8:18 16:3 interests 44:17 incorrectly 17:8 44:18 Alderson Reporting Company Official - Subject to Final Review 55 interpretation 11:21 34:20 interpreting 12:25 introduce 28:12 47:7,8 introduced 3:11 13:14 23:7 27:13,16 43:13 46:13 introduces 41:21 42:17,22 introducing 26:15 introduction 7:11 46:21 invite 45:1 involved 4:17 25:5 34:10 involvement 25:6 involves 10:24 issuance 8:5,24 issue 3:17 8:21 8:22 14:12 16:5,8 17:18 20:23 27:10 28:17 31:13,25 40:10,16 46:16 issued 15:20 38:18 issues 10:20 21:13 J JA127A 43:21 JA154A 27:1 JA210A 30:9 jeopardy 4:12 Juan 29:19 judge 20:9 34:5 judges 40:1 judgment 10:17 35:6,9 45:22 46:1 judicial 12:16 jumping 29:12 jurisdiction 39:15 jurist 40:20 jurists 6:8,11 36:5,10,11 40:17 juror 28:21,21 28:25 29:15 jurors 5:21 23:1 44:15 jury 3:14 19:24 21:12,21 22:2 22:4,8,11,13 22:22 23:4,12 24:4 27:19,20 29:14 30:2,3,6 30:8,14,24,25 42:12,17 44:20 47:15,18 48:11 48:20,22 jury's 30:11 justice 1:7 3:3,8 3:21 4:6,24,25 5:22 6:6,15 7:1 7:2,24 8:2,20 9:3 10:9 11:13 11:19,20 12:6 12:10,13,18,23 13:11 14:7 15:1,13,18 16:7,16,23 17:1,16 18:9 19:20 20:1,4,7 20:13,16,19 21:3,7,17 22:21 24:6,14 24:16 25:17,21 26:2,20 27:12 28:6,19,24 29:13,21 30:16 30:25 31:10 32:13,17 33:2 33:13 34:9,13 34:16 35:13 36:8 37:10,24 38:4 39:1,12 39:25 40:10 41:8,13,19,24 41:24 42:3,7 43:6,25 44:7 44:10 45:8,15 46:2,9,20,22 49:16 justices 40:2 justifications 8:17 justify 8:24 40:14 45:21 justifying 35:6 know 7:22 8:10 11:10 12:20 13:1,8,8,20 14:16,21 15:7 15:10 16:17 17:21 19:20 20:7,10 21:21 22:8,10,21 23:1,25 27:14 31:1 33:18 37:10 38:4 40:5,13 42:20 44:14,20 48:14 knowing 47:7 knowingly 3:11 46:13 33:11 34:11,17 limited 24:8 38:19 limits 33:17 line 18:7 40:13 list 34:24 listed 32:17 literally 22:4 litigated 49:11 litigation 10:20 little 42:16 long 34:22 37:13 46:6 K look 12:1 30:10 Kagan 6:15 7:1 36:24 39:3 16:16,23 17:1 43:17 33:2,13 38:4 looked 47:22,25 L 39:12 41:19,24 48:22 42:3,7 43:25 lack 17:13 18:21 looking 15:14,19 44:7,10 23:18 32:8 30:15 35:21 Keller 1:21 2:6 34:23 LORIE 1:6 25:18,19,21 language 17:20 lot 18:11 19:21 26:13,21,22 17:22 29:22 37:14 45:17 27:21 28:16,23 laughing 43:18 low 4:3,8 36:11 29:10,16,23 Laughter 34:15 lower 14:20,23 30:21 32:4,15 law 9:22 32:7,25 17:13 40:21 32:21 33:9 Lawrence 23:25 lunch 26:25 34:2,12 35:2 23:25 24:5,24 M 36:3 37:1,18 Lawrence's 25:7 38:1,4,12 39:5 lawyer 33:25 majority 11:12 39:18 40:8,16 42:17,19 11:16 41:11,14,23 lawyers 33:17 making 7:8 9:5 42:1,6,23 leave 7:1 21:14 22:4,5 43:16 44:7,22 legal 43:25 46:18 47:6 45:14,18 length 15:4 male 27:10 KENNEDY let's 8:20 10:13 malfeasance 13:11 26:20 35:25 33:23 key 26:13 31:6 level 28:17,19 man 26:1 29:5 killed 24:6,9,10 39:7 Martinez 8:23 24:13 life 3:18 20:2,9 9:6,12,25 10:5 kind 10:15 20:10,24 21:22 10:21 31:18,19 15:10 19:1 22:5 23:22 31:22 32:7,14 23:5 27:18 29:2 32:23 49:13 31:21 37:11 light 19:17,17,18 Martinez's 45:13 likelihood 28:12 31:25 kinds 34:16 29:18,24 matter 1:15 knees 29:11 limitations 25:8 25:15 28:6 Alderson Reporting Company Official - Subject to Final Review 56 49:19 matters 23:3 McCollum 46:19 mean 7:1 12:20 15:3 17:4,5 28:7 31:5,15 31:17 32:17 34:16 35:15 36:9,13 38:10 39:16 41:6 42:12 44:20 45:11 meaningful 46:11 means 48:22 meet 31:25 mentioned 27:7 mercy 20:5 29:3 29:15 meritorious 13:8 merits 5:6,8,12 5:13,23 6:7,7 6:23 8:4 15:2 15:11,17,20 16:1 35:14,16 35:21 36:2 39:3,17,19 40:13 45:16 met 40:24 mildly 13:8 mind 13:12 minimum 25:2 minutes 30:5,13 46:3 misconduct 43:12 misjudge 33:17 moment 21:20 30:3 mortified 29:6 mother 25:24 29:11 43:18,19 motion 32:12,16 32:22 35:9,11 35:12 39:22 49:11 move 37:16 moved 37:7 multiple 43:2 murdered 25:24 26:1 Murray 19:4 obvious 31:21 obviously 6:1 8:10,12 12:20 20:4 22:16 35:7 occasion 37:19 38:2 occurred 10:10 N October 1:13 N 2:1,1 3:1 odd 14:11 N.Y 1:19 oddly 6:20 nation 29:6 offense 18:12 nation's 46:10 offenses 18:24 nature 27:22 offered 16:3 28:2 33:15,15 offering 13:18 nearly 43:4 27:25 necessary 30:12 oh 6:8 need 14:23 okay 6:6 12:10 17:10 28:11,11,14,17 negative 28:10 35:24 36:10 negotiated 20:24 old 21:17,18 neither 28:9 once 22:1 23:7,7 never 8:23 9:15 ones 26:4 9:16 33:20 opened 48:16 44:2 opening 10:19 new 1:19 4:15 37:5 8:11,12 9:21 opinion 3:12 35:8 4:18 11:20 newspaper 19:19 46:13 33:24 47:14,19,25 Ninth 9:14 48:7,11,18 noncapital opportunity 11:16 49:13 normal 36:2 opposite 31:9 note 29:1 48:20 38:25 noted 17:25 options 48:2 29:19 32:23 oral 1:15 2:2,5 38:14 40:24 3:6 25:19 46:20 37:19,24,24 notes 48:19,22 38:3 notwithstandi... order 5:15 22:10 ordinary 4:13 number 20:16 ought 36:16 outcome 29:19 O overwhelming O 2:1 3:1 22:11,13 observes 21:2 P P 3:1 p.m 49:18 page 2:2 38:2 paper 22:19 parole 20:2,10 20:24 21:1,4 21:12 29:1,2 part 19:23 34:23 particular 12:25 particularly 13:2 23:15 36:22 38:22 pause 40:5 peek 15:10 penalty 10:10 11:4 33:24 people 24:6,9,10 25:4 33:19 40:5 44:10,11 44:13,15 percent 38:6,7 percentage 14:14 peremptory 47:2,4 performed 35:4 performing 39:16 pernicious 3:19 19:13 49:7 person 28:8,13 31:14 36:15 42:14 petition 10:7 32:21 41:5 Petitioner 1:4,20 2:4,10 3:7 12:4 18:13 25:24 29:10 30:3 32:24 37:5,6 38:5 39:21 41:3,4 42:25 43:3,3 45:6 46:5 Petitioner's Alderson Reporting Company 27:13,15 34:23 Petitioners 10:4 phase 10:10 piece 22:19 pilot 29:7 pivotal 22:16 23:9 place 25:3 32:13 32:19 platform 14:12 please 3:9 25:22 point 17:11,12 30:2 37:12 39:12 42:8,9 pointed 38:5 points 42:6,8 police 30:7 position 8:4,25 9:18 10:4 14:3 31:9 positive 24:25 possibility 21:22 28:20,25 possible 18:9 29:1 posture 8:14 34:4 37:20 38:22 poured 29:5 powerfully 24:1 practice 37:3,4 38:21 precedent 33:10 preemptory 46:25 preference 8:13 prejudice 18:10 19:6 27:24 28:18,20 29:17 43:4,8,23 44:25 45:2,9 45:12 46:8 49:8 prejudiced 4:11 6:12 prejudicial 28:4 41:20 42:4,10 Official - Subject to Final Review 57 42:21 44:4,6 45:3 prerequisite 3:16 23:12 present 23:23 26:12 41:1 presented 5:2 8:17 18:18 22:14 23:17,20 23:24 24:4 25:11 presents 24:24 pretty 31:19 35:23 prevail 35:16 prevent 10:18 previous 17:25 previously 25:1 primary 43:7 primata 28:5 prior 10:17 18:23 23:19 25:4 prison 23:22 24:3 41:4 prisoner 4:21 prisoners 10:13 11:17 probability 29:21 problem 13:24 procedural 4:15 5:20 9:7 26:7 procedurally 10:16 procedures 36:2 proceeding 26:19 43:5 44:8 proceedings 20:25 process 28:2 37:13,17,22 38:15,23 39:8 41:17 prong 18:11 proof 16:20 proper 18:7 properly 10:3 prosecuting 26:14 prosecution 26:11 41:15,21 42:12,15 44:14 44:16 prosecution's 47:11 prosecutor 21:11 26:20,23 26:24 27:1,7 27:25 28:9,12 28:14 31:1 42:13 43:8 47:13 48:2,9 48:12,15 prosecutor's 4:2 prosecutors 13:18,22 protection 28:1 41:17 46:20 prove 31:5 proves 31:11 provide 13:10 14:8 37:21 provided 18:3 38:15 provides 34:21 psychiatric 20:17 21:23 psychology 30:7 publicly 4:14 purpose 37:15 pursuant 4:21 11:4 pursue 34:18 pursued 11:10 pursuing 32:8 32:24 34:24 put 4:11 23:14 25:25 26:22 27:18,19 37:3 43:20 putting 19:12,12 28:4 Q quantum 39:9 question 5:2,20 5:20 6:16 7:3,5 7:16 9:10,19 11:8,25 22:17 23:9,11,20 24:1,20 29:4 31:15 32:3 35:16,22 36:19 37:11 40:7 43:14,25 48:13 questioning 4:2 19:22 questions 22:14 40:12 45:25 quick 22:9,12 quick-and-dirty 15:10 quickness 30:17 Quijano 3:25 27:2 33:20 42:24,24 45:5 47:16 48:4 Quijano's 19:19 21:15 25:13 43:1 47:11,13 47:18,24 48:7 48:11,17 quite 17:23 36:18 38:25 quote 27:8 43:19 R R 3:1 race 4:17 7:17 19:22 23:1,4 26:6,16,17,18 27:7 28:7,10 28:13 29:3 30:19 31:2 33:21 42:24 43:5 44:8 46:21,25 47:8 48:7,17,24 race-based 41:16 47:4 racial 4:23 7:11 10:25 11:7 13:25 14:6 23:5 28:8 46:8 racialized 19:2 49:3 racist 26:15 47:24 raise 10:14 raised 32:9,12 33:20 49:4 raising 35:8 range 36:13 rare 34:1 rarely 40:24 rate 39:7 reach 14:21 reached 16:23 read 8:22 34:25 real 19:10 47:12 49:4 realizes 42:13 really 5:1,5 8:4 14:8 17:12 39:13 45:21 reason 4:12 9:7 9:13 13:13 31:11,14,16 33:21 reasonable 6:8 6:11 28:20,25 29:21 36:5,10 36:11,15 40:17 40:20 reasons 16:2 31:3 32:4 34:25,25 rebuttal 2:8 25:16 46:4 receive 21:12 receiving 39:8 recognize 9:6,10 recognized 18:25 44:23 46:6 record 23:2 24:24 30:5,9,9 Alderson Reporting Company records 22:23 redacted 21:14 reference 19:21 21:16 regardless 26:10 31:13 reiterate 47:14 48:9 relating 18:12 relationship 24:9,11,23 45:9 relative 43:7 reliance 31:22 31:24 47:11 relief 10:8,17,17 11:10 33:5 35:6 rely 13:17 47:16 48:17 remainder 25:16 remaining 46:3 remorse 18:21 23:18 reopen 31:15 32:2 35:9 reopening 34:21 repeatedly 33:22 43:21 repeating 44:19 reply 37:7 report 19:24 20:17,20 21:15 21:15,23 22:2 26:24 48:24 49:5 reports 30:7,7 representation 27:14 representing 33:23 request 48:20 required 5:18 47:13 requirements 34:21 Official - Subject to Final Review 58 requires 46:7,11 reread 20:20 research 22:24 reserve 25:16 respect 5:19 8:21 9:18,20 10:1 13:12 17:14 19:22 45:10 46:17 Respondent 1:10,22 2:7 25:20 Respondent's 38:2 response 30:18 37:6 40:9 responsibility 43:11 rest 18:15 result 4:20 16:24 29:24 retroactive 9:1,6 10:21 retroactivity 9:4 9:19,21 returned 30:14 reversed 4:19 review 15:17 46:12 47:21 48:20 reviewed 26:25 reviewing 36:22 reviews 27:24 revisited 26:21 Richter 29:23 right 5:22,22 6:19 7:9 8:20 9:5 12:22 16:22,25 17:4 17:11 24:12,16 25:9 34:11 35:19,24 44:1 47:3 48:23 49:2 rise 41:7 44:24 risk 4:9 12:3,6 12:15 19:6,10 19:12,15,19 26:5 49:4,6 ROBERTS 3:3 4:25 5:22 6:6 11:19 12:6,10 12:13,18,23 14:7 15:1,13 15:18 16:7 17:16 25:17 26:2 30:16 35:13 36:8 37:10 39:1 45:8,15 46:2 49:16 role 7:17 romantic 24:8 24:11 room 30:25 roughly 38:8 route 48:15 row 47:22,23 rule 5:8 9:23 11:21,22 29:20 32:2 35:9 44:25 ruled 48:1 rules 9:21 12:25 14:12,17 ruling 10:18 39:22 45:9 run 33:12 48:21 scientific 19:13 49:7 scope 26:23 SCOTT 1:21 2:6 25:19 scrupulously 18:1 se 44:25 45:3 search 39:3 second 9:9 11:3 30:8 32:7,15 35:9,12 second-prong 29:17 security 25:2 see 22:12 30:8 47:23 seeking 10:5 seen 35:20 37:8 sense 35:10 sent 15:21 29:1 48:20 sentence 3:16 4:21 7:13,18 11:1,5 12:7 13:5 14:5 21:22,24 22:9 23:12 24:4 25:24 42:15 sentenced 6:9 12:19 23:22 S 26:6 S 2:1 3:1 sentencing 3:14 Saldano 26:3 3:17 4:11,16 29:5 47:22 8:12 19:3,10 satisfied 8:6,8 49:5 saw 26:24 sequence 24:21 saying 5:3,11 serious 40:7,12 7:3 37:11 seriously 40:9 40:14 43:19 44:16 says 9:11,16 serve 38:13 21:24 25:12 setting 34:20 29:1 31:4,8 seven- 9:14 44:14 seventh 31:9 scale 23:15 shocked 29:7 scene 30:8,15,23 shortcomings 25:8 shot 24:17,20 26:1 show 18:13 27:13 showing 5:12 15:8,9 35:18 35:25 shown 39:6 shows 17:7 22:15 side 6:23 31:24 sides 19:23 22:20 significant 13:4 significantly 28:3 similar 38:8 similarly 6:19 26:4 simple 9:15 simply 34:4 38:24 39:10 sister 24:21 sitting 42:12 situation 22:4 33:25 38:23 44:23 46:24 situations 40:14 six 4:16 31:7 six- 9:14 Sixth 27:23 43:24 small 14:14 19:21 Solicitor 1:21 Somebody 20:5 soon 34:13 sorry 24:16 sort 5:5,7 14:22 15:10 18:3,20 19:6 Sotomayor 7:24 8:2,20 9:3 11:13 19:20 20:1,4,7,13,16 20:19 21:17 Alderson Reporting Company 28:6,19,24 29:13,21 37:24 39:25 40:10 46:20 speaking 16:1 special 43:10 spectrum 4:9 spend 30:20 split 9:9 spoke 23:9,20,25 squarely 9:24 stage 9:22 37:22 stand 9:17 22:3 standard 5:3 8:5 8:7 16:4 17:8 18:2,8 29:16 29:16 34:3 36:3,4,17,18 36:20,23 39:20 40:4,20,22,23 standards 7:4 start 8:21 state 13:3,11 14:5 26:4 28:4 29:19 31:19 37:5 40:1 41:12 42:1,6 43:5,10 44:7 44:10,12 States 1:1,16 12:17 statistics 38:5 39:6,10 statue 33:11 statute 34:10,20 statutes 34:17 statutory 17:20 stepping 19:11 stepsister 24:14 26:1 stereotype 3:20 49:8 stood 49:12 straightforward 35:23 strategically 47:3 Official - Subject to Final Review 59 Strickland 18:11 29:17 43:15 45:12 strong 31:20 44:3,3 stronger 45:16 structural 44:24 struggling 22:16 subject 23:23 submission 45:12 submitted 49:17 49:19 substantial 5:12 15:8,8,8 17:13 29:18,22,25 31:7 35:18,25 36:25 37:4,13 38:15,22 substantially 33:13 substantively 16:1 suggest 38:10 41:6 suggesting 33:6 suggestion 39:2 supposed 39:13 39:16 40:11 44:18 Supreme 1:1,16 sure 17:9 20:23 21:11,14,20 30:12,16 survived 24:15 Swarns 1:19 2:3 2:9 3:5,6,8,24 4:8 5:15 6:3,10 6:25 7:6 8:1,9 9:2,20 10:22 11:15,24 12:9 12:12,14,22 13:1,20 14:18 15:12,15,23 16:13,16,22,25 17:4,21 18:17 19:25 20:3,6 20:12,15,18,23 47:21 48:19 21:6,9,19 49:12 22:23 24:13,15 Texas's 22:10 24:18 46:3,4,6 25:8 46:17 system 4:24 Thank 25:17,21 12:16,20 46:9 46:2 49:15,16 46:22 theory 41:25 42:5 T thing 6:20,21 T 2:1,1 22:24 33:18 table 7:2 things 20:2,22 take 32:19 32:18 48:23 taken 14:2 39:2 think 3:22,22 talk 19:21 20:8,9 8:9,14 10:22 27:9 10:23 11:11,24 talked 34:1 11:25 13:9,21 talking 19:1 14:19 16:18 36:9 17:21,22 18:5 Teague 9:21,24 18:19 21:19 tell 13:13 20:14 23:3 34:25 20:21 42:8 37:1 38:18,20 ten 12:7 22:25 39:5,7,18 43:6 38:9 44:15 45:3 tension 4:25 46:19 terms 4:9 7:19 thinks 42:19 11:24 third 9:11 11:8 terrible 19:9 11:13 37:8 test 9:11,15 thought 16:17 11:14 15:7 37:15 43:9 17:16 43:15 threatening testified 3:25 43:22 testifying 42:24 three 10:22 45:5 23:17 30:5 testimony 18:15 40:1 20:20 25:7 three-part 9:11 27:3,25 41:16 threshold 5:9 43:2 47:11 15:16,25 17:23 tests 9:17 36:11 Tex 1:21 thumb 23:14 Texas 1:6 4:13 thwarts 41:4 4:18,20,22 time 15:16 21:18 7:19 8:18 22:16 25:16 13:22 14:2 26:24 30:20 18:17 23:11,17 33:17,18 35:22 23:19 25:3,10 37:8 38:14 25:11,12 28:21 46:10 31:7 43:10 times 27:7 38:9 today 3:4 5:5 25:23 46:9 told 20:9 21:3 totality 45:22 totally 31:8 tougher 36:9,9 traumatized 29:7 Trevino 6:21 8:23 9:6,12,25 10:5,21 32:7 32:14 trial 3:11 9:22 10:6,11 19:22 20:24 21:11 27:11 46:12 47:6 48:13,16 trigger 19:2,10 49:3 triggered 46:23 true 13:15 21:9 42:18,19 48:21 trying 15:4 47:3 Turner 19:4 49:2 two 20:1,16,22 22:14 23:2 24:9,10 30:4 32:4 33:19 38:8,10 40:1,2 48:22,23,23 type 37:21 underlying 5:6 39:23 45:16 undermined 10:25 11:1 14:6 undermines 4:23 7:12 13:25 underscores 14:22 understand 26:7 26:7,8 31:11 35:13 42:9 44:13 understanding 17:2 34:10 unduly 5:4 unique 10:23 11:12,16 13:3 13:20 14:8,11 14:16 38:19 United 1:1,16 unjust 12:8 unqualified 49:12 unquestionable 4:5 unquestionably 11:5 12:4 unquote 43:20 unrelentingly 11:10 unring 23:8 unsustainable 8:19 unusual 10:10 34:2 urgent 46:9 use 14:17 18:5 28:10 44:11 uses 28:7,21 42:10 U U.S 29:25 Uh-huh 19:25 20:3,12 ultimate 26:9 43:1 ultimately 7:19 22:3 23:3 unable 17:6 unceasing 46:7 V uncompromised 11:6 v 1:5 3:4 19:4 unconstitutio... 29:23 32:5,23 6:9 33:10 34:7,9 Alderson Reporting Company Official - Subject to Final Review 60 35:10 46:19 valid 15:5 validated 22:19 validity 19:13 Valmontez 29:19 various 27:2 31:3 vast 11:12,16 verdict 30:14 video 30:8,15,23 48:21 violation 16:10 16:14 28:2 41:17 violence 3:13 4:1,5,9,18 18:23 19:3,15 19:19 21:25 23:19,21 24:2 25:3 46:14 47:17,25 48:7 48:18 49:4 virtue 30:19 Volume 27:11 vs 29:19 W waive 4:15 walking 27:1 want 5:13,23,25 6:7,24 10:14 15:22 16:9,9 27:9 33:24 46:18 wanted 20:8 wants 42:15 Washington 1:12 wasn't 16:12 29:3 33:14 34:19 47:12 watched 29:6 watching 29:7 way 16:21 20:22 28:10 37:11 we'll 3:3 36:1 we're 5:11 12:4 16:8 25:23 30:25 we've 12:1 22:25 Wednesday 1:13 Welch 6:16 went 15:3 27:8 weren't 8:25 white 23:1 wholly 41:3 wider 38:21 widespread 37:2 wildly 42:21 win 8:8,11 witness 22:3 31:1 48:5 witnesses 33:20 woman 29:5 won 6:1 words 26:10 34:14 work 12:11 worse 47:9 wouldn't 4:7 35:23 wrong 6:4 7:4,4 8:7 15:1,2 16:6 16:11,19,21,23 31:8 35:24 36:20 38:11 X x 1:2,11 Y yeah 15:11 20:15 28:16 32:17 33:9 42:3 year 6:15 25:4 years 12:7,19 21:5 23:6 35:7 yield 19:3 York 1:19 Z 0 1 11 39:21 11:07 1:17 3:2 111 30:1 12:02 49:18 13 30:5 15-8049 1:4 3:4 165A 27:1 1918 30:6 1919 30:6 7 70-page 37:5 8 9 95 30:13 2 20 35:7 2006 32:6 2016 1:13 20s 21:19 25 2:7 28 27:11 3 3 2:4 35-page 37:7 37-page 37:6 4 40 12:19 21:5,16 46 2:10 5 5 1:13 50 38:2 51 38:2 562 29:25 5956 30:9 6 6 38:7 60 32:22 38:6 60(b) 17:12 32:2 32:12,16 35:3 35:9,11,12 39:22 45:10,13 45:17 49:11 60B 10:3 11:21 11:22 14:25 6333 30:9 Alderson Reporting Company