When the State kills, race matters

SCOTUSblog Recommended Citation: Lyle Denniston, Court reopens race and death penalty issues, SCOTUSblog (Jun. 6, 2016, 1:41 PM), http://www.scotusblog.com/2016/06/court-reopens-race-and-death-penalty-issues/

In another Texas capital punishment case, the Court agreed to try again to sort out when an individual is too disabled intellectually to be sentenced to death. The Justices chose not to consider a second issue raised in that case: the constitutionality of prolonged stays on death row, especially on the theory that this treatment causes severe psychological harm. A month ago, over Justice Stephen G. Breyer’s dissent, the Court refused to hear that question in a California case. It appears that there are not four votes (the minimum number required) to grant review of that particular issue.

In the newly granted case of Buck v. Stephens, the Court gave itself the option of weighing a death sentence that may have been influenced by a racist comment by an expert who had been called to the witness stand by a defense lawyer, not by prosecutors. The expert had made similar comments in several other Texas cases, and the state had taken action to remedy those, but did not do so in the case of Duane Edward Buck of Houston.

Buck’s new appeal focused on the same legal complaint that a divided Court refused to consider five years ago: that his defense lawyer failed in his constitutional duty by calling to the stand a psychologist, who told the jury that Buck would be likely to be dangerous in the future, if not put to death, because of his race; Buck is black. The question of future dangerousness was a central issue for Texas juries in deciding for or against a death sentence.

The witness, Dr. Walter Quijano, had been summoned by Buck’s trial lawyer to testify on the dangerousness issue. He said flatly that his studies had shown that black people and males were more likely to be a danger to the public. Under questioning by Buck’s lawyer, he reviewed the findings of his report.

Buck was sentenced to death for murdering his girlfriend in front of her children, along with the murder of a man. Both crimes occurred in 1995. When Buck took an appeal to the Supreme Court in 2011, five Justices commented negatively about the witness’s comment, but three of those five said the blame lay with Buck’s lawyer for calling that witness and eliciting that testimony. Two Justices would have granted review at that time.

As Buck’s case returned to the Court this Term, it focused on whether the U.S. Court of Appeals for the Fifth Circuit had raised too high a barrier before Buck could raise anew the question about Dr. Quijano’s testimony. Buck’s current lawyers have been attempting to reopen his case to raise the same racial discrimination issue. That essentially procedural question may be at the center of the Court’s coming review, but the underlying race bias claim remains in the case.

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