Supreme Court To Hear Death Penalty Case Based On Racially Tainted Testimony Duane Buck was given the death penalty after an expert witness testified that he was more likely to be dangerous in the future because he was black. The Supreme Court hears his case Wednesday.


Supreme Court To Hear Death Penalty Case Based On Racially Tainted Testimony

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The U.S. Supreme Court hears arguments today in the case of Duane Buck, a convicted Texas murderer sentenced to die. He was given the death penalty after his own lawyer put on the stand an expert witness who testified that Buck was more likely to commit violent crimes in the future because he is black. NPR legal affairs correspondent Nina Totenberg reports on a case involving some details that may not be suitable for children.

NINA TOTENBERG, BYLINE: There's no doubt about Duane Buck's guilt or the gruesome nature of his crime. He shot and killed his ex-girlfriend in front of her children while she begged for her life. He also killed the man he thought she was sleeping with. And he shot his own stepsister, who was at the house, too, though she survived.

While the jury easily convicted Buck, it had trouble deciding whether to sentence him to death or life in prison. The jurors were out for two days, sending four notes to the judge, focusing apparently on the question of future dangerousness. Under Texas law, a jury cannot sentence a defendant's death unless it unanimously concludes he poses a future danger.

During the sentencing phase of the trial, Duane Buck's own lawyer put on the witness stand psychologist Walter Quijano, who testified that, statistically, Buck was more likely to commit violent crimes in the future because he is black. The prosecution then drove that point home during cross-examination.

At his trial, Buck heard the testimony and couldn't understand why nobody objected, as he told his new lawyer during a subsequent prison interview recorded by the NAACP Legal Defense Fund.


DUANE BUCK: Out of all the things (unintelligible) because it's like he basically was saying, because you're black, you need to die. And I felt that was strange because my lawyer didn't say nothing, and nobody else - you know, the prosecutor or the - or the judge - nobody did - it's like it was an everyday thing in the courts.

TOTENBERG: Although Buck kept losing his appeals in the Texas courts, by 2000, an appeal based on Quijano's similar testimony in another case made it to the Supreme Court. While the case was pending, then-Texas Attorney General John Cornyn formally admitted that the state had denied the defendant his constitutional right to be sentenced without regard to the color of his skin and that the psychologist's references to race seriously undermined the fairness, integrity and reputation of the judicial process.

Importantly, Cornyn also announced his office had identified six other capital cases in which the defendant was sentenced to die after similar racial claims by Quijano. In three of the cases, including Buck's, Quijano was put on the witness stand by the defense. And in three, he was put on by the prosecution. Cornyn promised that all would be treated the same way and that his office would not object if the inmates sought a new sentencing hearing.

The state lived up to that pledge for 5 of the 6 death row inmates. But in Buck's case, when Cornyn moved on to the U.S. Senate, his successor, now Governor Greg Abbott, reneged. In the ensuing years, new lawyers acting for Buck repeatedly appealed his sentence on grounds that he'd been denied effective assistance of counsel, but they lost because the claim was raised too late. In 2013, though, the Supreme Court, for the first time, ruled that, even if lawyers initially failed to raise a claim, the federal courts may still review that claim in extraordinary cases.

So in 2014, Buck's lawyers went back to federal court. They still lost, so they appealed to the Supreme Court, which will hear arguments in the case today. Lawyer Christina Swarns of the NAACP Legal Defense Fund will tell the justices that Buck's case is an extraordinary case because Buck is now the only prisoner facing execution in Texas after the state acknowledged that his case was contaminated by racial bias.

CHRISTINA SWARNS: This is a kind of explicit appeal to racial bias that courts around the country for over a hundred years have found that, once it is said only once, it's impossible to unring the bell. And in this case, that evidence told the sentencing jury that it didn't need to rely on any of the individual facts and circumstances of Mr. Buck's crime or his life history to decide whether or not he should be executed. The only thing they needed to rely on or know about was the fact that Mr. Buck was black. That is unconstitutional, and that is deeply prejudicial.

TOTENBERG: The Texas solicitor general declined to be interviewed for this broadcast, but the state argues in its briefs that Buck did not establish a substantial likelihood that the jury would have reached a different conclusion if the testimony linking race to violence had not been introduced. The state maintains that the horrific facts of Buck's crime, his lack of remorse at the scene and testimony from another ex-girlfriend about his violence towards her played a much larger role. A decision in the case is expected later in the term. Nina Totenberg, NPR News, Washington.

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