Supreme Court to Consider Hearing Texas Capital Case Where Expert Said Defendant Posed Greater Danger Because He Was Black

UPDATE: The Supreme Court docket indicates that its conferencing of Mr. Buck’s case, originally set for April 22, has been rescheduled. The Court is now scheduled to considering the case on April 29. PREVIOUSLY: On April 22, the U.S. Supreme Court is scheduled to confer on whether to review the case of Duane Buck (pictured), who was sentenced to death in Harris County, Texas after a psychologist testified that he posed an increased risk of future dangerousness because he is black. In the case, the defense presented psychologist, Walter Quijano, as its own witness, even though he had previously testified in other cases to a supposed link between race and future dangerousness. During cross-examination, the prosecution asked Quijano - without objection by the defense - whether “the race factor, black, increases the future dangerousness for various complicated reasons.” Quijano replied, “yes.” The prosecution then returned to this race-based testimony during its closing argument in calling for the jury to sentence Buck to death. Buck is one of six defendants who a Texas Attorney General’s report identified as having unfair capital-sentencing hearings that were tainted by Quijano’s race-based testimony, and the only one to be denied a new sentencing hearing. Courts initially rejected Buck’s claim of prosecutorial misconduct for presenting race-based evidence and argument on the grounds that Buck’s own lawyer had presented the witness. However, the lower courts then denied relief when he subsequently presented the argument that his lawyer had provided ineffective representation on this issue. The case has attracted widespread attention, and several stakeholders in Buck’s case, including the second-chair prosecutor from Buck’s trial, former Texas Governor Mark White, and a surviving victim have urged that Buck be granted a new sentencing hearing. Linda Geffin, the second-chair prosecutor, said “The state of Texas can’t put Mr. Buck to the ultimate punishment without having a fair, just, color-blind sentencing hearing.” A bipartisan group of amici have urged the Supreme Court to grant review of what they called the “noxious and deeply prejudicial use of race” in this case. American Bar Association President Paulette Brown recently wrote in the Houston Chronicle, “Obviously, an odious race-based argument is never acceptable, let alone in a criminal case where the defendant’s life is at stake. And a defendant whose lawyer invites such racist testimony not only has a strong chance of being sentenced to death but a strong claim of ineffective counsel.”

The overt use of race to sentence Buck to death reflected historical trends in Harris County at the time of Buck’s trial. A report by University of Maryland Professor Ray Paternoster revealed that, at that time, Harris County prosecutors were 3.5 times more likely to seek death against black defendants than white defendants in comparable cases and the county’s juries were more than twice as likely to return death verdicts in those cases.

(J. Smith, “HOW DANGEROUS IS YOUR BLACKNESS?,” MTV, April 13, 2016; P. Brown, “Quality of counsel is crucial when life or liberty are at stake,” Houston Chronicle, April 14, 2016; “A Broken Promise in Texas Race, the Death Penalty and the Duane Buck Case (video),” NAACP Legal Defense Fund, April 7, 2016.) See Race and Arbitrariness. Read Duane Buck’s Petition for Writ of Certiorari here and the amicus brief here.