THERE IS NO QUESTION that Duane Buck is responsible for the double murder of his ex-girlfriend and her friend in Houston, Texas, on July 30, 1995. That morning, Debra Gardner was at home with her two kids and three friends, including Buck’s stepsister, when Buck stormed into the home armed with a shotgun and a rifle. He began shooting: He fired at one of the friends and missed; he shot his stepsister point blank in the chest (she survived); and he fatally wounded another of Gardner’s friends, Kenneth Butler. Gardner fled from the house and Buck followed, killing her in the street as her two children looked on. Buck was arrested at the scene and laughed as he was taken away, according to one law enforcement officer. “The bitch deserved what she got,” Buck allegedly said. In 1997, Buck was tried and convicted of capital murder. He was sentenced to die. What remains an open question in the case is whether the racially charged testimony of an expert witness tainted Buck’s sentencing hearing, influencing jurors to send him to death row instead of giving him a life term. At specific issue is testimony from psychologist Walter Quijano, who testified that being black made Buck more likely to be violent in the future. That’s no minor assertion given that Texas’s death penalty scheme requires jurors to affirmatively determine that a defendant poses a risk of “future dangerousness” — meaning, a defendant would be prone to commit future acts of violence, including against those inside prison, unless sentenced to die. It wasn’t the first time that Quijano had expressed this view during a death penalty case. A 2000 review of capital cases by Texas Attorney General John Cornyn (now the senior U.S. senator from Texas) found that Quijano had testified seven times regarding the influence of race on future dangerousness, including in Buck’s case. At the time, Cornyn said that if any of those defendants were to seek a new sentencing hearing the state would not stand in their way because “it is inappropriate to allow race to be considered a factor in our criminal justice system.” And so it went for six of the defendants, all of whom were subsequently re-sentenced to death. (To date, three of them have been executed.) But in the Buck case the state has declined to honor its previous pledge and instead has said that Buck does not deserve a new hearing. In fact, no court has yet considered the merits of Buck’s claim that the racist testimony impacted his fate. And unless the U.S. Supreme Court steps in — the justices are expected to decide soon whether they’ll take Buck’s case — it is entirely likely that Buck will be put to death without that question ever being answered. “Mr. Buck received a death sentence that is the product of explicit and blatant racial discrimination,” one of Buck’s attorneys, Kate Black, wrote in an email to The Intercept. “The Supreme Court now has the opportunity to reaffirm the fundamental constitutional principle that racial discrimination has no place in our modern system of justice.”

No court has yet considered the merits of Buck’s claim that the racist testimony impacted his fate.

To the state of Texas, Buck’s case is different from the others featuring Quijano’s conclusions about race and violence because it was Buck’s own defense attorneys who called the psychologist to the stand. That did happen: Buck’s lawyers not only elicited the questionable testimony, but they also introduced into evidence Quijano’s written report, which jurors asked to see during their deliberations, and which far more bluntly made the racist connection. In discussing the “statistical factors” that relate to future dangerousness, Quijano wrote, “Race. Black. Increased possibility. There is an over-representation of Blacks among the violent offenders.” But it is also true that in cross-examining Quijano, the Harris County prosecutor, Joan Huffman (now a Texas state senator), returned the focus to Buck’s race. “You have determined … that the race factor, black, increases the future dangerousness for various complicated reasons; is that correct?” she asked. “Yes,” Quijano replied. Then, in her closing arguments, Huffman encouraged jurors to rely on Quijano’s expertise, reminding them that he’d said that there was a “probability that [Buck] would commit future acts of violence.” And despite the state’s assertion that somehow Buck’s case is inherently different from the others in which Quijano testified, it turns out that in two of those cases the psychologist was also called to the stand by the defense. To date, the only real consideration given by the courts to the question of what impact the racially biased conclusion had on Buck’s sentence has centered around the issue of who is responsible for its inclusion at the hearing. That, according to Buck’s current attorneys, is due to deficient lawyering — by Buck’s attorneys both at trial and on appeal. Introducing the testimony and expert report at trial was certainly a dubious decision (as was the failure to object to the prosecutor’s focus on race in Quijano’s cross-examination). But perhaps even more damaging to Buck’s current situation was the failure of his subsequent attorney to argue on appeal that the trial lawyers provided constitutionally ineffective assistance to Buck during the sentencing hearing by offering the jurors Quijano’s conclusions. In fact, it wasn’t until two years after Cornyn admitted that Quijano’s testimony was problematic — and more than five years after Buck’s initial appeal was filed — that the appellate lawyer raised the issue. But by that time it was too late: Failing to make that argument in Buck’s first appeal meant that he had forfeited the ability to do so at all. There is good evidence that the jurors in Buck’s case were influenced by the racist assertion, because in the third of three notes sent to the court during their deliberations the jurors specifically asked to review Quijano’s expert report. Procedurally, however, there was no way for the courts to consider whether those deficiencies meant Buck should be granted a new hearing, free from discriminatory testimony and conclusions. Nonetheless, judges who have refused to consider the merits of Buck’s claims have noted that the testimony itself is troubling. In 2011, for example, Supreme Court Justice Samuel Alito opined that the testimony was “bizarre and objectionable.” Even so, he wrote that it was the defense’s fault for eliciting that testimony in the first place. By 2013, the Supreme Court had decided a pair of cases that effectively tweaked the law to provide some ability for defendants to revisit defaulted claims of ineffective lawyering — but only in “extraordinary” cases. Since then the discussion around Buck’s case has become exhaustingly focused on whether the underlying circumstances are exceptional enough for the appeal to be considered. So far the courts have ruled that they are not. Indeed, a federal district judge in Houston wrote in 2014 that Buck’s trial counsel was in fact constitutionally deficient — he “recklessly exposed his client to the risks of racial prejudice and introduced testimony that was contrary to his client’s interests” — but concluded that while “the introduction of any mention of race was ill-advised at best and repugnant at worst, it was, in this case, de minimis” and thus not eligible for further consideration.

Harris County prosecutors were more than three times as likely to seek the death penalty against black defendants.