Duane Buck, an African American death row inmate in Texas was refused a new hearing by the Supreme Court this week. An earlier appeal by Buck’s attorney for a temporary reprieve in September had been granted.

Buck’s requested a new sentencing hearing because prosecutors and a psychologist during the initial hearing told jurors that “his race made him more likely to pose a ‘future danger’ to the public.

Jurors were told that Buck’s race made him more likely to commit additional crimes. Under Texas law this “was significant because future dangerousness is a key factor in deciding whether the death penalty is assigned,” writes Theroot.com.

The psychologist had been called by the defense, adding an additional twist to the case.

Still, two justices, Sonia Sotomayor and Elena Kagan, both nominated by President Obama, voted for hearing the case. Sotomayor and Kagan argued that “Buck’s trial had been marred by racial overtones” and that his attempts to raise the issue on appeal had been undercut by “misleading remarks and omissions” by Texas prosecutors.”

Conservative justices argued that the defense had itself to blame for calling the psychologist. The three, Stephen Breyer, Antonia Scalia and Samuel Alito said that “no new trial was necessary because it was the defense that introduced racial statements.” In all the other cases, they said, “the psychologist, even when called by the defense, discussed race only in response to prosecution questions.”

The case now rests with the state of Texas. Already, 11 people have been executed in Texas this year.

A national campaign to overturn the death penalty reached new heights recently with the execution of Troy Davis in Georgia.

Close to half of respondents in recent polls favor life sentences over the death penalty. Sixteen states and Washington, D.C., have ended executions.

Activist Angela Davis, speaking at Occupy Wall Street, called on protesters to identify with and remember Troy Davis.