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.

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