Supreme Court weighs racial bias in black inmate’s death sentence

Duane Buck asked the Supreme Court for a new sentencing, claiming the jurors were tainted because of his race.

By Gary Gately   

WASHINGTON (Talk Media News) – The U.S. Supreme Court Wednesday sided with a black Texas death-row inmate who argues he deserves a new sentencing hearing because an expert defense witness testified blacks are more likely to commit future crimes.

In oral arguments in the case of Duane Buck, who fatally shot and killed his ex-girlfriend in front of her children and a man he believed she was having sex with in Houston in 1995, a majority of justices made plain their view that the tainted testimony deprived him of a fair sentencing hearing.

But the case is so extraordinary, the court’s decision won’t establish any broad precedent on the death penalty.

Buck was sentenced to death in 1997 after his defense team put on the stand during a sentencing hearing psychologist Walter Quijano to testify whether Buck presented a danger to society.

Quijano testified Buck was more likely to commit crimes because he’s black. When a prosecutor asked on cross-examination, “You have determined that … the race factor, black, increases the future dangerousness for various complicated reasons. Is that correct?” Quijano replied, “Yes.”

Under Texas law, a jury must unanimously agree a defendant poses a danger before imposing a death sentence.

Christina Swarns, Buck’s lawyer at the Supreme Court, told the eight justices at oral arguments Wednesday that Buck should get a new sentencing hearing because of the racially tainted testimony.

“This is evidence of an explicit appeal to racial bias,” said Swarns, litigation director of the NAACP Legal Defense and Educational Fund. “It’s impossible to un-ring the bell. This evidence put the thumb heavily on the death scale.”

She said eliminating racial discrimination in sentencing is “as urgent today as at any time in our nation’s history.”

Justice Samuel Alito, along with several other justices, agreed the testimony led to discrimination in sentencing Buck, now 53.

“What occurred at the penalty phase is indefensible,” Justice Samuel Alito said.

And Justice Ruth Bader Ginsburg, pointing to Quijano’ testimony, asked, “Doesn’t it show how abysmal his counsel was?”

Justice Elena Kagan suggested the fact that Buck’s lawyer’s witness brought up race and “future dangerousness” likely made the testimony more credible to the jury.

“It would seem more prejudicial when the defendant’s own lawyer brings it up. The jury would probably think, then it must be true,” Kagan said.

Texas Solicitor General Scott Keller, arguing before the high court, said the jury had considered numerous factors other than the psychologist’s testimony and a subsequent report. He reminded the justices police quoted Buck as saying of his ex-girlfriend after his arrest, “The bitch deserved what she got.”

But Justice Sonia Sotomayor asked Keller: “Isn’t it a reasonable possibility that one juror … could have been convinced to exercise mercy if race wasn’t used? Can you answer that question ‘absolutely not?’”

Keller did not answer the question.

For nearly two decades, Buck has lost appeals in courts in Texas, which executes far more inmates than any other state courts, and is now seeking a reversal of a 2015 decision by the New Orleans-based 5th U.S. Circuit Court of Appeals denying his request for an appeal.

In 2000, then-Texas Attorney General John Cornyn, now a Republican U.S. senator, concluded Quijano’s racially tainted testimony deprived Buck of his constitutional right to be sentenced “without regard to the color of his skin” and said his office would not oppose new sentencing hearings for Buck and six other black defendants sentenced to death.

Five of the defendants got new sentencing hearings.

But Cornyn’s successor, Greg Abbott, now the Republican governor of Texas, fought Buck’s appeals, as has Republican Ken Paxton, the current attorney general.

“As a result, Mr. Buck is the only Texas prisoner to face execution pursuant to a death sentence that Texas itself has acknowledged is compromised by racial bias that undermines confidence in the criminal justice system,” Swarns said.

Kagan noted the 5th Circuit Court of Appeals – which covers Texas, Louisiana and Mississippi — refuses to hear appeals of death penalty cases much more often than the Atlanta-based 11th Circuit appeals court, which covers Florida and other southeastern states.

“It does suggest one of these two circuits is doing something wrong,” she said.

Sotomayor alluded to a 2010 New York Times story on Jerry Guerinot, Buck’s court-appointed lawyer at the jury trial and sentencing hearing. The newspaper described Guerinot as a death penalty case lawyer “best known for losing them” and noted more than 20 of his clients had been sentenced to death.

“If you want to ensure a death penalty, hire this lawyer,” Sotomayor said.

A ruling is expected by June in the case, Buck v. Davis. (Lorie Davis is the director of the director of the Correctional Institutions Division in the Texas Department of Criminal Justice.)

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