High Court Hears Case Challenging Discriminatory Testimony

(Photo: Flickr/Brittany Hogan)

Duane Buck’s life was on the line in May 1997, when a Texas jury considering whether to sentence him to death on murder charges heard “expert” testimony that Buck was more likely to pose a continuing threat to society because he is black. Nearly 20 years later, Buck’s life is still on the line, as the U.S. Supreme Court hears arguments on Wednesday in a case challenging the constitutionality of such racial stereotyping.

To the growing number of Americans protesting racial disparities in the criminal justice system, the fact that such a question could even come before the high court demonstrates an arguably stunning double standard.

Buck’s murder conviction is not being contested—only the fairness of the sentencing trial that Texas law requires before the state can impose the death penalty. In the words of Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, the case is about whether the state may take an individual’s life when the jury’s deliberations have been “tainted with this most odious, this old, this deeply entrenched racial stereotype about the dangerousness of black men.”

In a brief filed before the Fifth Circuit Court of Appeals in July, Buck’s lawyers devote nearly 20 pages to the procedural thickets that have grown up around the case as it has wound its way through state and federal courts. The case has even reached the Supreme Court once before, in 2011, when Buck was first granted a stay of execution.

The case stems from an ill-advised decision by Buck’s own court-appointed lawyer in his initial 1997 murder trial to introduce the “expert” testimony of a psychologist by the name of Walter Quijano. The prosecutor asked Quijano whether he believed, as the prosecutor put it, “the race factor, black, increases the future dangerousness for various complicated reasons.” Quijano answered yes. A subsequent court-appointed lawyer objected to the testimony, but not until it was too late under state court rules to seek a retrial.

“It is impossible to imagine a stronger claim of ineffective assistance of counsel,” says Samuel Spital, a partner with Holland & Knight now serving on Buck’s current legal team.

Quijano had also offered “expert” testimony on the questionable role of race in the case of Victor Hugo Saldaño, another criminal facing the death sentence. Saldaño’s lawyers filed a cert petition asking the Supreme Court to determine whether “a defendant’s race or ethnic background may ever be used as an aggravating circumstance in the punishment phase of a capital murder trial in which the State seeks the death penalty.”

At the time, Saldaño’s lawyers got an assist from then–Texas Attorney General John Cornyn, who conceded that introducing race as a factor for the jury to consider had violated Saldaño’s constitutional rights and “seriously undermined the fairness, integrity or public reputation of the judicial process.” The state promised not to object to new sentencing hearings in six cases tainted by similar testimony, including Buck’s and Saldaño’s, and the Supreme Court sent the cases back to lower courts for reconsideration.

New sentencing hearings were granted in five of the six cases. But Buck’s was at the end of the line, and after Cornyn was elected to the U.S. Senate in 2002, the state reneged on its promise to give Buck a new sentencing hearing. Texas officials argued that Buck’s attorneys, not prosecutorial misconduct, were to blame for the introduction of the unconstitutional testimony. That has left Buck, in the words of a 2014 motion from his lawyers, “as the only individual in Texas facing execution without having been afforded a fair and unbiased hearing.”

Instead of simply giving Buck a sentencing hearing untainted by unconstitutional claims that his race poses a particular danger, the Harris County district attorney and the state of Texas have waged years of legal battles over such technicalities as court deadlines and rules of procedure.

Most recently, a panel of the Fifth Circuit Court of Appeals upheld a District Court ruling that denied Buck a so-called Certificate of Appealability, which is required under federal rules to appeal a court’s denial in habeas corpus cases. The Fifth Circuit found that Buck’s case not only failed to rise to the “extraordinary” level required for review under federal court rules, but that no “reasonable” judge would consider the case extraordinary, effectively blocking Buck from further recourse.

“If this case isn’t extraordinary, what is?” asks Katherine Black, a staff attorney with Texas Defender Service and part of Buck’s legal team. “If we’re going to have this rule, what does it mean if it doesn’t apply in this case?”

Two Fifth Circuit judges dissented, stating that reasonable jurists might, indeed, find the case extraordinary. One said that the court panel dismissed, miscast, and minimized Buck’s evidence. They noted that last year, U.S. Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan singled the Fifth Circuit out for special criticism for its “troubling” habit of mishandling such appeals cases.

In the broadest sense, the moral and societal question facing the Court is whether in America a man may be sentenced to death based on evidence that is unconstitutionally tainted by racial stereotyping. But the actual technical and legal question before the Supreme Court is whether the Fifth Circuit erred in upholding a lower court’s refusal to grant Duane Buck the right to appeal a district court’s finding that his case is not sufficiently “extraordinary” for a federal court to intervene.

To civil-rights activists protesting racially tinged police violence around the country, the question of whether courts may consider claims of the supposedly disproportionate danger that African Americans pose to society have taken on added urgency. In Tulsa, Oklahoma, on September 16, one police officer was recorded saying, while observing a large black man named Terence Crutcher walking slowly with his hands in the air, that Crutcher looked like a “bad dude,” moments before another police officer shot and killed him.

Ifill, of the NAACP LDF, says Buck’s case “speaks into the moment” in which young people are calling into question the fairness of the criminal justice system. In 2013, University of Maryland criminology professor Ray Paternoster studied sentencing in Harris County, Texas, between 1992 and 1999 and found that the district attorney was three times as likely to seek the death penalty for an African American defendant than a white one, and that juries were twice as likely to sentence an African American to death. A more recent study by Harvard Law School’s Fair Punishment Project named Harris County as one of 16 “outlier” counties in the country with five or more death penalties between 2010 and 2015. Every new death penalty sentence since 2004 in Harris County was imposed on a person of color.

What happens next if the Court accepts the arguments of Buck’s attorneys could depend on how much guidance justices give the Fifth Circuit. A full legal victory for Buck would give him a new sentencing trial, at which he could again be sentenced to death. The Texas Defender Service’s Katherine Black says she thinks another death sentence is unlikely, however, because any argument that he poses a continuing threat to society would be undermined by his 20-year record of good behavior in prison. Whatever the final sentence, says the Ifill, “any time the process is free of constitutional error, it’s a victory.”

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