WASHINGTON, D.C.—Supreme Court justices expressed doubt about the state's argument in a case about a death penalty trial where an expert claimed a defendant was more likely to be dangerous because he was black.
Duane Buck shot and killed his former girlfriend and her friend in Houston in 1995. Buck’s defense attorney called a psychologist named Walter Quijano to testify at his trial. On direct examination, Quijano noted that blacks and Latinos were “over-represented in the criminal justice system.” Then on cross-examination, the prosecutor asked Quijano if “the race factor, black, increases the future dangerousness for various complicated reasons.” Quijano said yes.
The prosecutor emphasized this testimony during closing arguments and the jury sentenced Buck to death after finding that he would be a future danger to the public. In five other capital punishment trials that Quijano testified in, defendants received new hearings, but prosecutors didn't give Buck that chance.
During the Supreme Court oral arguments today in the case, Buck v. Davis, none of the eight justices seemed to suggest that the racist testimony was excusable, but they grappled with how exactly to respond. Justice Samuel Alito characterized Quijano's testimony as "bizarre."
"What occurred at the penalty phase of this trial is indefensible," Alito said.
Buck's lawyer, Christina Swarns, the litigation director of the NAACP Legal Defense and Educational Fund (and one of the few black women to argue a case in front of the Supreme Court), framed the issue as an exemplar of racism in the American criminal justice system. The conviction "is compromised by racial bias that undermines the integrity of the courts," Swarns said.
Once a jury hears a racist testimony from a so-called expert, Swarns said, "it's impossible to unring the bell." She argued that Buck deserved a new sentencing trial.
Texas Solicitor General Scott Keller argued that the Court shouldn't give Buck another chance because the "expert" testimony was introduced by the defense lawyer and not the prosecution. But several justices seemed skeptical of that argument.
Just seconds after Keller began his oral arguments, Chief Justice John Roberts interrupted him to say that "I don't understand" why the testimony being elicited by the defense is any less objectionable than testimony elicited by the prosecution. Later, Kagan made the same point.
"I just don't understand that point," she said. "It seems wildly more prejudicial to me when the defense attorney introduces it," Justice Elena Kagan noted. "When the defendant's own lawyer introduces this, the jury is going to say, well, it must be true."
The justices also discussed the issue of whether the Fifth Circuit Court of Appeals, which declined to hear Buck's case, was improperly granting Certificates of Appealability—essentially permission to appeal a case. Justice Elena Kagan noted that the Fifth Circuit, which hears all federal appeals from Texas and several southern states, tends to deny Certificates of Appealability at a far higher rate than other circuit courts in death penalty cases. The Fifth denied certificates in 60% of cases, while the Eleventh Circuit denied only 6%, she said, adding, "it does suggest one of these two circuits is doing something wrong."
"You can use this case as an example of how far out of line the Fifth Circuit is" compared to the other circuits, Swarns suggested.
The justices could rule narrowly in Buck's favor because of the clearly racist testimony without making broader changes to case law, either by telling the Fifth Circuit to hear his appeal or directly ordering a new sentencing trial. Because the case is unique in how explicit the racism was, "this would be an odd platform to issue general rules," Roberts noted.
Their ruling will be released sometime before the end of June 2017.
The case previously came before the Court in 2011, which the justices declined to hear on procedural grounds. At the time, legal precedents precluded defendants from arguing in federal appeals that their trial attorneys had failed them—unless their appeals attorneys raised that argument in the state appeals process, which Buck’s initial appeals attorney did not do. Since then, the Court has reached two important decisions—known as Martinez and Trevino—that make it easier for inmates to appeal their convictions on the basis that they had a deficient lawyer.
At today's arguments, Justice Stephen Breyer said that to him it seemed like the Martinez decision fits Buck's case "like a glove."
On the courthouse steps after the arguments, Buck's lawyers and supporters were optimistic. Arguing in front of the Court "was an experience of a lifetime," Swarns told me. "I'm heartened by the fact that Justice Alito correctly characterized what happened here as indefensible. I'm hopeful that we'll get a majority of the court to see that this requires further review and ultimately relief."
Also present at the courthouse was Phyllis Taylor, one of Buck's victims, who is advocating for his release. He shot and injured her the same night he killed two people. She forgave Buck years ago and now visits him regularly in prison and calls him "my brother." (At one point during the arguments, Alito implied that Taylor had been killed, and Swarns pointed out that she survived. He apologized.)
Taylor, who's short and has a big curly hair, beamed broadly after she left the courthouse. "I have forgiven him from the bottom of my heart, and I love my brother," she told me. "I have been waiting a long time for this, but I never doubted that justice would be served."
Buck’s day in court came as Texas is preparing to end a nearly six-month hiatus without executions. On Wednesday night, inmate Barney Fuller is scheduled to die by lethal injection, the first execution in the state since April 6.
Casey Tolan is a National News Reporter for Fusion based in New York City.