WASHINGTON (CN) — Several Supreme Court justices voiced outrage Wednesday about racist testimony that Texas prosecutors elicited from an expert witness in a death-penalty case.
Duane Buck has spent the last two decades on death row for the 1995 murder of his ex-girlfriend, Debra Gardner, and her friend, Kenneth Butler.
Racist testimony emerged at the penalty phase of Buck's trial when psychologist Walter Quijano testified under cross-examination by the prosecution that black men like Buck are statistically more likely to commit violent crimes.
Of six capital cases where Quijano had testified, and where prosecutors had invited the juries to consider race as a factor in sentencing, Buck's is the only one where the state has not confessed an error.
The Supreme Court held arguments on this morning to consider whether Buck deserves a certificate of appealability.
"This is a very— a very unusual case, and what occurred at the penalty phase of this trial is indefensible," Justice Samuel Alito said. "But what concerns me is what the implications of your argument would be for all of the other prisoners who - let's say they're not even capital cases, but they have - they want now to raise some kind of ineffective-assistance-of-counsel claim that is procedurally defaulted. And they say we should have relief from a prior judgment denying habeas relief."
Christina Swarns, a Manhattan-based attorney for Buck, insisted that her client's case is unique and extraordinary because of level of injustice done.
Chief Justice John Roberts questioned how courts would evaluate other cases based on this standard.
"I mean, I know that obviously death is different," Roberts said. "But it's hard to factor in why it's different in the context of interpreting particular rules."
In fact, Roberts suggested that the uniqueness of the case could mean it would be inappropriate to challenge the Fifth Circuit's decision.
"To the extent it is a unique case, it really doesn't provide a basis for us to say anything at all about how the Fifth Circuit approaches certificates of appealability, does it?" Roberts asked. "It's a unique case, so this would be an odd platform to issue general rules."
Texas Solicitor General Scott Keller tried to distinguish Buck's case from the five others featuring Quijano testimony in which the state later conceded error.
Quijano had testified for the prosecution in each of the five cases, Keller noted, but it was Buck's defense attorney who called the psychologist as a witness.
The argument held little sway, however, for the justices.
"Doesn't the fact that petitioner's own counsel introduced this show how abysmal his representation was?"Justice Ruth Bader Ginsburg asked. "I don't know why it should make a difference that the petitioner's counsel introduced this evidence."
Keller insisted he was not defending Buck's attorney's decision to rely on the testimony, but that it did reduce the level of prejudice introduced into the deliberations, as compared with the state having used the testimony.
Justice Elena Kagan disagreed with Keller's contention, arguing instead it would be "wildly" more prejudicial for the defense to include such testimony because jurors at least somewhat discount evidence coming from the prosecution as potentially suspect.