Supreme Court Skeptical of Death Sentence Tainted by Racial Bias

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By Casey C. Sullivan, Esq. on October 05, 2016 1:01 PM

When Duane Edward Buck was tried for the murder of his ex-girlfriend and a man he suspected of being her lover, the jury did not struggle to convict him. But they were more hesitant over whether he should be sentenced to death, focusing, according to NPR's Nina Totenberg, on whether Buck would pose a danger in the future. Buck's own defense may have tipped the scales, sending him to death row, when it introduced testimony that Buck posed a greater risk in the future simply because he was black.

Today, the Supreme Court took up Buck's case, hearing oral arguments over whether that prejudiced testimony was enough to entitle Buck to appeal his conviction. And, if today's arguments are any indication, things are starting to look promising for Buck.

Sentenced to Death Because of His Race?

Before a jury can impose a death sentence in Texas, it must find unanimously that a defendant is likely to commit violent crime in the future. During sentencing, Buck's own lawyer introduced an expert witness, the psychologist Walter Quijano, to testify on that question -- and that testimony didn't go in Buck's favor.

On the stand, Quijano testified that Buck's race made him more likely to be violent in the future. "It's a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system," Quijano said. When the prosecution asked directly if Buck's race increased his future dangerousness, Quijano responded directly: "Yes."

Buck's lawyers did not object.

Race and Criminal Justice

When Buck sought to challenge his death sentence on the grounds that his counsel was ineffective for introducing and allowing Quijano's racist testimony, the Fifth Circuit declined to issue a Certificate of Appealability. Buck's extraordinary circumstances simply weren't extraordinary enough to meet the standards of Federal Rule of Civil Procedure 60(b)(6), the Fifth ruled.

While Buck's case hinges on the standard the Fifth applied when denying his Certificate of Appealability, Buck's attorneys see his case as part of a larger conversation about race and criminal justice. The case "could not be more timely," Kate Black, co-counsel in Buck's case and staff attorney at the Texas Defender Service, told FindLaw. "There is a national conversation about the pernicious myth that Black men are somehow inherently dangerous, a notion at the heart of Mr. Buck's extraordinary case."

Justices Appear Sympathetic

The justices appeared to agree that something much greater than the niceties of the Federal Rules of Civil Procedure was at play here. Indeed, few justices seemed to seriously consider that Buck's case was not extraordinary, as the Fifth had found.

The Chief Justice and Justice Kagan wondered whether the Court should simply rule on the merits that Buck was entitled to a new hearing, full stop, or to what extent they should engage the standards for a Certificate of Appealability relied on by the Fifth.

Justice Alito described Quijano's testimony as "indefensible," though he cautioned against "opening the door" for more death penalty appeals. Chief Justice Roberts seemed to allay those fears a bit, saying that Buck's is "a unique case, so this would be an odd platform to issue general rules."

The justices also seemed unpersuaded by Texas Solicitor General Scott Keller's focus on the heinousness of Buck's crime. Buck not only killed his ex-girlfriend and another man, he did so in front of the woman's children, and shot his stepsister in the chest as well. Does that mean at least one juror could not have been "convinced to exercise mercy if race wasn't used?" Justice Sotomayor wondered.

Justice Kagan noted that the Fifth Circuit denies more than half of the capital appeals requests it receives, while others are much more permissive. "It does suggest that at least one of these circuits is doing something wrong," Kagan said.

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