Supreme Court Orders New Hearing for Black Death Row Inmate

Duane Buck (Texas Department of Criminal Justice via AP)

(CN) — The Supreme Court on Wednesday ordered a new hearing for a black Texas prison inmate who claims a trial court improperly allowed testimony about his race that led to his death sentence.

Chief Justice John Roberts wrote the majority opinion after he and his fellow justices voted 6-2 in favor of Duane Buck, who was convicted for the 1995 shooting deaths of his ex-girlfriend, Debra Gardner, and her friend, Kenneth  Butler.

Buck has long claimed his rights were violated when a defense expert witness, Dr. Walter Quijano, told jurors during the sentencing phase of the murder trial that the man they’d just convicted was more likely to be dangerous in the future because he is black.

In Texas death penalty trials, one of the specific issues jurors must consider when deciding punishment is whether the defendant they’ve convicted would be a future danger.

Buck was scheduled to be executed on Sept. 15, 2011, but the Supreme Court intervened, granting him a stay so he could proceed with his arguments.

Nine years later, then-Texas Attorney General John Cornyn recommended that six cases, including Buck’s case, be reviewed for racially biased testimony.

But Buck’s case ultimately didn’t get reviewed.

(Meanwhile, all of the inmates in the other five cases were re-sentenced to death.)

Buck’s lawyers contended the attorney general, by then Cornyn’s successor Greg Abbott, broke a promise by contesting his case.

Cornyn, a Republican, is now the state’s senior U.S. senator. Abbott now is the state’s governor.

Asked to weighed in on the  matter, the Fifth Circuit concluded it could find nothing in the case record to indicate the state made an error or promised not to oppose any move to reopen the case.

Buck continued to try to press his case in federal court, but to no avail, and he soon found himself once again headed to the Fifth Circuit.

On Aug. 20, 2015, a three-judge circuit court panel rejected Buck’s appeal premised on his race being the deciding factor in his death sentences, ruling he failed to show he’d been subjected to extraordinary circumstances.

The U.S. Supreme Court granted Buck certiorari on Oct. 5, 2016, specifically to consider whether the Fifth Circuit imposed an improper and unduly burdensome Certificate of Appealability standard.

On Wednesday, a majority of justices held the Fifth Circuit was wrong to deny him a hearing.

Roberts found that Quijano’s testimony “appealed to a powerful racial stereotype — that of blackmen as ‘violence prone.'”

“In combination with the substance of the jury’s inquiry, this created something of a perfect storm,” the chief justice wrote. “Dr. Quijano’s opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing. The effect of this unusual confluence of factors was to provide support for making a decision on life or death on the basis of race.”

Furthermore, Roberts said, “[t]his effect was heightened due to the source of the testimony.

“Dr. Quijano took the stand as a medical expert bearing the court’s imprimatur. The jury learned at the outset of his testimony that he held a doctorate in clinical psychology, had conducted evaluations in some 70 capital murder cases, and had been appointed by the trial judge (at public expense) to evaluate Buck,” he continued. “Reasonable jurors might well have valued his opinion concerning the central question before them.”

The majority held that given all this, it simply could not accept the lower court’s conclusion that “‘the introduction of any mention of race’ during the penalty phase was ‘de minimis.’”

“There were only ‘two references to race in Dr. Quijano’s testimony’ — one during direct examination, the other on cross. But when a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death, the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupies in the record. Some toxins can be deadly in small doses,” Roberts wrote.

Justices Clarence Thomas and Samuel Alito dissented.

“Having settled on a desired outcome, the Court bull- dozes procedural obstacles and misapplies settled law to justify it,” Thomas wrote in the dissent that Alito joined.

Thomas went on to say the criticism his colleagues in the majority heaped on the Fifth Circuit in Roberts’ opinion was misguided and simply wrong.

If there was a bright side to the opinion, Thomas said, it was that Wednesday decision would likely have “few ramifications, if any.”

” The majority leaves entirely undisturbed the black-letter principles of collateral review, ineffective assistance of counsel, and Rule 60(b)(6) law that govern day-to-day operations in federal courts,” he explained.

He also offered some advice to the Fifth Circuit, to which the case will now return.

“[T]he Court’s opinion does not require the lower courts to reflexively accord relief to petitioner on remand,” Thomas said. “In order to succeed under Martinez and Trevino, petitioner must establish that his state habeas counsel was constitutionally ineffective for failing to raise a Strickland claim as to his trial counsel.

“Today’s decision does not address that showing, and the court on remand should not treat it as a foregone conclusion,” he added.