Supreme Court Reviews Racial Discrimination In Texas Death Penalty Case

The Supreme Court heard oral arguments Wednesday in a case from Texas involving a murder defendant sentenced to death after a trial witness said he was statistically more likely to commit more crimes because he was African-American.

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The Supreme Court heard arguments today in a case about race and the death penalty. Duane Buck was convicted of murder in Texas, and he was sentenced to die after a psychologist testified he was more likely to commit violent crimes in the future because he was black. NPR legal affairs correspondent Nina Totenberg has the story. And a warning, it contains some gruesome details.

NINA TOTENBERG, BYLINE: Buck shot and killed his ex-girlfriend in front of her three children while she begged for her life. He killed the man he thought she was sleeping with, and he shot his own stepsister Phyliss Taylor who survived the horrific night. Today she was at the Supreme Court supporting Buck's defense lawyers in an attempt to get a new sentencing hearing for him.

PHYLISS TAYLOR: I pray that it be converted to life because I know who he is, and on that particular day, he was under the influence of drugs.

TOTENBERG: To sentence a defendant to death under Texas law, a jury must unanimously agree that the defendant poses a future danger. In this case, Buck's own lawyer called psychologist Walter Quijano, who testified that Buck was generally not violent but that he was more likely to commit violent acts in the future because he's black.

When a similar case involving the same psychologist went to the Supreme Court in 2000, Texas conceded error. It also found six more cases in which Quijano linked race to violence, and it pledged to allow all seven defendants to bring appeals for new sentencing hearings.

The state delivered on that promise except in Buck's case. Inside the Supreme Court chamber today, there seemed little doubt that would change. The question was how. Would the justices just say that the 5th Circuit Court of Appeals was wrong to deny Buck sentencing appeal, a decision that would affect only one person? Or would they rule that the 5th Circuit is an outlier and death penalty appeals, that its whole approach is wrong?

Arguing for Buck was Christina Swarns of the NAACP Legal Defense Fund. She noted that the jury deliberated for two days on Buck's sentence and sent out four notes. One asked about the possibility of life without parole, a question that the trial judge never answered. Another asked for the report filed by the defense psychologist that directly correlated race to the likelihood of future violence.

Justice Alito called the introduction of race as a predictor of violence indefensible, but he was the only justice who voiced skepticism about granting what's called a certificate of appeal for Buck. The Supreme Court has ruled in the past that the certificates should be granted in any case where reasonable jurists could find the legal issue debatable.

The Supreme Court has rebuked the 5th Circuit more than once before over its refusal to grant these certificates in capital cases. And today, when Texas Solicitor General Bill Keller rose to defend the Texas position, the justices took issue with almost every facet of his argument. Over and over they noted that the state had initially promised to allow a sentencing appeal to go forward in all seven of the cases where psychologist Quijano linked race to violence.

Why, they wanted to know, did the state change its mind in Buck's case? Chief Justice Roberts - I assume the facts of the other cases are similarly heinous. Justice Sotomayor drove the point home, noting that in one of the other cases, a man poured gasoline on his victim, lit it and watched her die.

The state's lawyer replied that in this case the racial testimony was introduced by the defense lawyer. Justice Ginsburg - if his own counsel introduced this, why isn't that evidence of how abysmal his lawyer was? Justice Kagan - jurors may discount a prosecutor's evidence a bit because they realize the prosecution has an interest in getting the sentence it wants, but it seems wildly more prejudicial to me when the defense attorney introduces it. That, she said, is directly relevant to Buck's claim that he was denied effective legal representation, a claim that no court has ever heard in his case.

Turning to the question of whether the 5th Circuit is using the wrong standard to certify appeals, Justice Kagan noted that the Circuit denies certification 10 times more often than the adjoining 11th Circuit. It does suggest, she said, that one of these two Circuits is doing something wrong. Whether the court will go that far, however, was not clear. Nina Totenberg, NPR News, Washington.

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