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.
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Rather than following the path outlined in Cornyn’s press release, the Texas attorney general’s office opposed Buck’s motion for a new sentencing hearing. State lawyers argued that although there was testimony about race during Buck’s sentencing hearing, it was only a minor reference and there was no discussion of race in closing arguments to the jury.Skip to next paragraph
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Not every reference to race or ethnicity in a capital sentencing hearing is constitutionally impermissible, Texas prosecutors said. They suggested the racial reference was not an important factor leading to the jury’s decision to sentence Buck to death.
Buck’s lawyers countered that prosecutors had a choice to make during the capital sentencing hearing. They could have ignored Quijano’s references to race and sought to focus the jury’s attention exclusively on permissible factors. Or they could attempt to use the defense witness’s comments in an improper appeal to the juror’s prejudices.
One of Buck's lawyers, Gregory Wiercioch, of Texas Defender Service, said the choice prosecutors made in Buck’s case – to refer to the race issue – violated his client’s right to be treated fairly and equally in the criminal justice system without regard to race or ethnicity.
Justice Sotomayor agreed with Mr. Wiercioch’s analysis. “Buck did not argue that his race made him LESS dangerous, and the prosecutor had no need to revisit the issue. But she did, in a question specifically designed to persuade the jury that Buck’s race made him MORE dangerous and that, in part on this basis, he should be sentenced to death,” Justice Sotomayor wrote in her dissent.
The justice said Buck should have been granted a new sentencing hearing like the five other convicted murderers whose earlier hearings were tainted by Quijano’s references to race.
Writing for the majority, Justice Alito said the critical distinction wasn’t whether race was mentioned but who first elicited the objectionable testimony, the prosecution or the defense.
“Dr. Quijano’s testimony would provide a basis for reversal of [Buck’s] sentence if the prosecution were responsible for presenting that testimony to the jury,” Alito wrote. “But Dr. Quijano was a defense witness, and it was [Buck’s] attorney, not the prosecutor, who first elicited Dr. Quijano’s view regarding the correlation between race and future dangerousness.”
Alito said that what distinguishes the five other death row cases from Buck’s is that prosecutors were primarily responsible for eliciting Quijano’s testimony about race. Prosecutors either called him as their own witness or raised the subject without initial prompting by defense counsel.
“Only in Buck’s case did defense counsel elicit the race-related testimony on direct examination,” Alito wrote. “Thus, this is the only case in which it can be said that the responsibility for eliciting the offensive testimony lay squarely with the defense.”
In a statement, one of Buck’s lawyers, Kate Black, said: “We are disappointed that the US Supreme Court has for now declined to review Duane Buck’s case.… It is now up to the State of Texas to ensure that Mr. Buck receives a sentencing hearing that is not impacted by the color of his skin.”
The case was Buck v. Thaler (11-6391).
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