Supremes Study Racism in Texas Death-Row Case

     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.
     Justice Sonia Sotomayor said, unless Keller could say for sure the racially charged testimony did not influence one person to shift their position from against death to in favor of death, he would have to concede that the merits of the case show a reasonable possibility of prejudice.
     “Is it a reasonable possibility that one juror, even the one who sent the note that says is it possible to do parole, life without parole, could have been convinced to exercise mercy if race wasn’t used?” Sotomayor asked. “Can you answer that question ‘absolutely not?'”
     The New York Times wound up profiling Buck’s trial counsel as one of the nation’s worst capital-defense lawyers.
     During the penalty phase, the attorney had called Quijano to the stand to testify as to Buck’s potential for being a future danger.
     Instead of saying Buck would not be a danger if allowed to live, Quijano told the jury “Hispanic and black people are overrepresented in the criminal justice system.”
     On cross-examination, the doctor said Buck was more likely to be dangerous in the future because of his race.
     Buck’s next counsel filed a state habeas corpus petition in1999, but did not raise an ineffective-assistance-of-counsel claim against Buck’s trial attorney.
     The Supreme Court shook up the landscape with its 2013 decision in Trevino v. Thaler, which found procedural requirements in Texas made it too difficult there to raise ineffective-assistance-of-counsel claims.
     Buck claims that the “extraordinary circumstances” of his case warrant relief. Texas has countered that ineffective-assistance-of-counsel claims are not extraordinary, and that Buck cannot bring up this issue now after failing to do so earlier.
     Swarns told the justices today that upholding Buck’s sentence based on the racially charged expert testimony would “put the very integrity of the courts in jeopardy.”
     “Mr. Buck is the only Texas prisoner to face execution pursuant to a death sentence that Texas itself has acknowledged is compromised by racial bias that undermines confidence in the criminal justice system,” Swarns added.
     Swarns also noted that the certificates of appealability that the Fifth Circuit grants amounts to a very small percentage as compared with other circuits.
     Roberts warned the attorney about “a tension in your briefing over what you’re really arguing for.”
     “In the question presented, you focus on the Fifth Circuit standard for a COA in saying they’re imposing an improper and unduly burdensome [standard],” Roberts said. “But most of the briefing, and as you sort of begun today, is really focused on the underlying merits of the case.”
     Swarns insisted that the merits of the case were directly tied into the Fifth Circuit’s decision to not grant the COA, and that he should be able to appeal because the U.S. District Court was wrong in denying Buck’s habeas petition.
     Justice Sotomayor also tried to pinpoint the issue.
     “Are you satisfied if we say they used the wrong standard for denying the COA, or will you only be satisfied if we say you win?” Sotomayor asked Swarns.
     One of the concerns justices raised about the court granting a COA to Buck is that it would retroactively apply the court’s decision in Trevino.
     When the Fifth Circuit denied Buck a certificate of appealability in August 2015, it noted that Buck was arrested at the scene, that police found the murder weapons in his car, and that two witnesses identified him as the shooter.“Buck laughed during and after the arrest and stated to one officer that ‘the bitch got what she deserved,'” the ruling states.In addition to Gardner and Butler, who died from their injuries, Buck had also shot his step-sister. She survived.
     The Fifth Circuit has rejected three appeals by Buck. Several justices dissented when the court denied Buck a rehearing en banc.When the Supreme Court refused to take up one of those appeals in 2011, Justices Sotomayor and Kagan complained that that the court had missed an opportunity to weigh in on a case “marred by racial overtones” and potential misconduct by state prosecutors.
     The Supreme Court agreed to take up Buck’s case in June.

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