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Was race a factor in Texas death sentence? Supreme Court declines case.

Two justices said the Supreme Court should have taken the case of Duane Buck, who was convicted of two murders. But three blamed his defense lawyers for introducing race into the trial.

By Staff writer / November 7, 2011


The US Supreme Court declined on Monday to take up the case of a death row inmate who claimed authorities in Texas improperly used race as a factor when trying to convince a jury to impose capital punishment.

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Lawyers for Duane Edward Buck had argued that prosecutors crossed the line when they asked a psychologist to repeat his conclusion in a report that African-Americans were statistically more likely to commit a violent crime in the future and pose a danger to the community.

The question arose during the penalty phase of Mr. Buck’s trial, after he had been found guilty of the fatal shooting of his former girlfriend and her male friend, but before the jury had decided whether he should receive a death sentence.

In an eleventh-hour appeal, Buck’s lawyers told the justices the use of a person’s race as a reason to order his execution was a violation of the constitutional right to equal protection and due process. They said Buck should be given a new sentencing hearing.

The high court split on whether to hear Buck’s appeal. Two of the nine members of the court – Justices Sonia Sotomayor and Elena Kagan ­– announced that they voted to hear the case.

They said Buck’s trial had been marred by “racial overtones,” and that his attempts to raise the issue on appeal had been undercut by “misleading remarks and omissions” by Texas prosecutors.

Three other justices – Samuel Alito, Antonin Scalia, and Stephen Breyer – issued a statement supporting the denial of Buck’s appeal.

The three acknowledged that there had been “bizarre and objectionable testimony” in Buck’s case about an alleged link between race and future criminal activities.

But the three justices said that the statements were introduced by a defense witness under questioning by a defense attorney. In essence, the majority justices concluded that Buck’s lawyers had only themselves to blame for bringing the race issue into the case.

The issue stemmed from the testimony of Dr. Walter Quijano, who had served for many years as the Texas Department of Criminal Justice’s chief psychologist. The defense called Dr. Quijano for one purpose, to convince the jury that Buck would pose no future threat to society if sentenced to life in prison – rather than death.

The problem was that Quijano had also concluded – in a report – that black and Hispanic offenders were more likely to commit future violent acts. Quijano also noted that African-Americans were statistically overrepresented in the criminal justice system.

Those points were touched on by a defense lawyer during direct examination. A prosecutor raised them briefly again during cross-examination of Quijano.

Buck’s appeal included an additional twist. Quijano’s comments and analysis concerning race and future dangerousness were not confined to Buck’s case. In the 1990s, Quijano testified in a number of capital cases in Texas.

In 2000, after a defendant successfully raised the same race issue in an appeal to the US Supreme Court, then Texas Attorney General John Cornyn ordered an audit of all capital cases featuring testimony by Quijano.

Later, Mr. Cornyn issued a press release announcing that his office had identified six similar cases in which race had been improperly cited as a factor in future dangerousness. He announced that Texas would not contest equal protection claims made in those six cases seeking a new sentencing hearing.

Five of the convicted murders were granted new hearings. The sixth case was Buck’s.


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