Race Factor Merits Look at Texas Death Row Case

(CN) - Justices Sonia Sotomayor and Elena Kagan said Monday they would have wanted the Supreme Court to review a Texas death sentence case "marred by racial overtones" and potential misconduct by state prosecutors.

After Duane E. Buck was convicted of capital murder in Texas, the prosecutor emphasized that black men like Buck are statistically more likely to commit violent crimes. A jury sentenced Buck to death.

Buck has failed to convince state and federal courts to review his case, with the most recent refusal coming from the Supreme Court on Monday.

A seven-page dissent authored by Sotomayor notes, however, that the psychologist who testified at Buck's sentencing hearing, Walter Quijano, has an unsettling record. In six capital cases to which Quijano was called as a witness, as with the Buck trial, "the salient fact was that the prosecution invited the jury to consider race as a factor in sentencing. And in each case, the defendant was sentenced to death."

The state of Texas confessed an error in one of those cases, leading the Supreme Court to vacate the sentence of Victor Hugo Saldano. Since Quijano gave similar testimony at five other trials, including Buck, the state attorney general flagged those defendants' cases. Texas did not raise procedural defenses to federal habeas petitions from four of the defendants, but it did assert a bar against Buck. The four defendants were each resentenced to death.

State prosecutors argued that Buck's case was materially different since the defendant's own lawyer called Quijano as a witness, eliciting the race statistics during questioning.

Though two of the six other similar defendants had also called Buck as a witnesss, a federal judge still applied Texas' procedural bar and dismissed Buck's habeas petition.

Buck pointed out Texas' misstatements, but the court refused to alter its judgment. In that matter, the state further erroneously claimed that the defense in one of the similar cases had not actually called Quijano as a witness. The 5th Circuit affirmed, something with which Sotomayor and Kagan took issue on Monday.

"The state argues that although the defendants in those cases each proffered Quijano as a witness, they did not, like Buck, elicit race-­related testimony on direct examination; instead, the prosecution first did so on cross-examination," Sotomayor wrote. "This distinction is accurate but not necessarily substan­tial. The context in which Buck's counsel addressed race differed markedly from how the prosecutor used it. On direct examination, Quijano referred to race as part of his overall opinion that Buck would pose a low threat to socie­ty were he imprisoned. This is exactly how the state has characterized Quijano's testimony."

"Buck did not argue that his race made him less dangerous, and the prosecutor had no need to revisit the issue," Sotomayor added. "But she did, in a question specifically designed to persuade the jury that Buck's race made him more dangerous and that, in part on this basis, he should be sentenced to death." (Emphasis in original.)

"Whether the District Court would accord any weight to the state's purported distinctions between Buck's case and the others is a ques­tion which that court should decide in the first instance, based on an unobscured record," she concluded. "Especially in light of the capital nature of this case and the express recognition by a Texas attorney general that the relevant testimony was inappropriately race-charged, Buck has presented issues that 'deserve encouragement to proceed further.'"

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