Opinion analysis: Court condemns use of race-based testimony in sentencing
on Feb 22, 2017 at 3:13 pm
When a Texas jury was deciding whether to sentence Duane Buck to death for the 1995 murders of his former girlfriend and another man, the key question in their deliberations was whether Buck was likely to be violent in the future. Buck’s attorney put Dr. Walter Quijano, a psychologist, on the stand, where Quijano testified, among other things, that Buck’s race – he is black – made him statistically more likely to commit violent acts. After two days of deliberations, the jury concluded that Buck should be executed for his crimes. Today, over 20 years later, six justices of the U.S. Supreme Court described the prospect that Buck “may have been sentenced to death in part because of his race” as “a disturbing departure from a basic premise of our criminal justice system.” But Buck’s case is not entirely over; rather, the justices sent the case back to the lower courts for additional proceedings that are likely to lead to a new sentencing hearing.
After Buck was sentenced to death, his case plunged into what Chief Justice John Roberts, writing for the court, characterized as a “labyrinth” of appeals and post-conviction proceedings. Things seemed to improve for Buck in 2000, though, when Texas filed a brief in which it urged the Supreme Court to send the case of death row inmate Victor Hugo Saldano, in which Quijano had testified that the defendant’s race – he was Hispanic – “was a factor weighing in the favor of future dangerousness,” back to the lower courts. The state told the justices in that case that “the infusion of race as a factor for the jury to weigh in making its determination violated his constitutional right to be sentenced without regard to the color of his skin.” A few days later, John Cornyn – then the Texas attorney general – issued a statement in which he decried the use of race in sentencing and identified as similar to Saldano’s six other cases, including Buck’s, in which Quijano had testified.
In contrast to its treatment of the other five cases identified by Cornyn, the state never agreed to allow Buck to be resentenced. That prompted Buck to return to federal court, where he would eventually argue that his case should be reopened under a federal rule that allows a federal district court to revisit an earlier ruling in cases of newly discovered evidence, fraud, and “any other reason that justifies relief.” The district court declined to do so, concluding that Buck’s case did not involve the kind of “extraordinary circumstances” required to reopen the ruling against him. In particular, it emphasized, even if Buck’s trial lawyers should not have called Quijano to testify, that testimony likely had only a minimal effect on the jury’s decision to sentence Buck to death. The district court also denied Buck’s application for a certificate of appealability – a threshold requirement for appealing a final decision by a federal post-conviction court – and the U.S. Court of Appeals for the 5th Circuit did the same.
As the case came to the Supreme Court, it involved only the technical question whether the 5th Circuit had used the right test to decide whether to give Buck a certificate of appealability. That inquiry, the court emphasized today, does not hinge on whether an inmate’s arguments are correct. Instead, the court stressed, the question is whether judges could reasonably disagree about the merits of the inmate’s claims. But because the 5th Circuit had “essentially decid[ed] the case on the merits” before rejecting Buck’s application for a COA, and because both sides had “essentially briefed and argued the underlying merits at length,” the court opted to look at the merits of Buck’s claims as well.
The court began with Buck’s argument that his lawyer’s decision to put Quijano on the stand violated Buck’s constitutional right to the effective assistance of an attorney. The district court agreed with Buck that his attorney should not have allowed Quijano to testify, and the majority today reiterated that point: “No competent defense attorney,” Roberts wrote, “would introduce such evidence about his own client.”
But the majority rejected the district court’s conclusion that the choice to have Quijano testify likely did not make a difference. The court acknowledged that Quijano had only referred to Buck’s race twice, but it did not find that fact dispositive. “When a jury hears expert testimony that expressly makes a defendant’s race directly pertinent on the question of life or death,” the court reasoned, “the impact of that evidence cannot be measured simply by how much air time it received at trial or how many pages it occupied in the record.” “Some toxins,” the court pointed out, “can be deadly in small doses.”
The court then turned to the district court’s holding that Buck had not shown the kind of “extraordinary circumstances” that would justify reopening his case. That ruling, the court suggested, rested “in large measure” on the district court’s conclusion that race did not have any real impact on the jury’s decision to sentence Buck to death – a conclusion with which the majority did not agree. The possibility that “Buck may have been sentenced to death because of his race,” combined with the “remarkable steps” that Texas took in the other, similar cases in which Quijano had testified, the court determined, entitled Buck to have the judgment against him lifted.
Justice Clarence Thomas dissented from the court’s ruling, in a 12-page opinion that was joined by Justice Samuel Alito. Among other things, Thomas disputed the majority’s conclusion that the jury might have reached a different verdict without Quijano’s testimony before it, describing “the prosecution’s evidence of both the heinousness of” Buck’s crime “and his complete lack of remorse” as “overwhelming.” But Thomas’ primary complaint about the majority’s opinion was the extent to which its “single-minded focus on according relief” to Buck led it to “bulldoze obstacles” “to justify it.” The only silver lining, in Thomas’ view, was that the unique facts of the case are unlikely to occur again, so that the broader impact of today’s decision will be limited.
Today’s decision appears to leave relatively little for the lower courts to do when Buck’s case returns there: The court closed by indicating that Buck had shown both that his trial lawyer was constitutionally inadequate and that the judgment against him should be reopened. In his dissent, however, Thomas suggested that the ruling “does not require the lower courts to reflexively accord relief to” Buck on remand, and that Buck will have to show next that his state post-conviction lawyer should have argued that his trial lawyer was constitutionally inadequate. Either way, today’s ruling was a major victory for Buck.