Opinion analysis: Court condemns use of race-based testimony in sentencing

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. Bucks attorney put Dr. Walter Quijano, a psychologist, on the stand, where Quijano testified, among other things, that Bucks 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 Bucks case is not entirely over; rather, the justices sent the case back to the lower courts for additional proceedings that are likely tolead 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 defendants 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 Saldanos six other cases, including Bucks, 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 Bucks case did not involve the kind of extraordinary circumstances required to reopen the ruling against him. In particular, it emphasized, even if Bucks trial lawyers should not have called Quijano to testify, that testimony likely had only a minimal effect on the jurys decision to sentence Buck to death. The district court also denied Bucks 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 inmates arguments are correct. Instead, the court stressed, the question is whether judges could reasonably disagree about the merits of the inmates claims. But because the 5th Circuit had essentially decid[ed] the case on the merits before rejecting Bucks 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 Bucks claims as well.

The court began with Bucks argument that his lawyers decision to put Quijano on the stand violated Bucks 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 courts conclusion that the choice to have Quijano testify likely did not make a difference. The court acknowledged that Quijano had only referred to Bucks race twice, but it did not find that fact dispositive. When a jury hears expert testimony that expressly makes a defendants 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 courts 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 courts conclusion that race did not have any real impact on the jurys 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 courts ruling, in a 12-page opinion that was joined by Justice Samuel Alito. Among other things, Thomas disputed the majoritys conclusion that the jury might have reached a different verdict without Quijanos testimony before it, describing the prosecutions evidence of both the heinousness of Bucks crime and his complete lack of remorse as overwhelming. But Thomas primary complaint about the majoritys 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 todays decision will be limited.

Todays decision appears to leave relatively little for the lower courts to do when Bucks 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, todays ruling was a major victory for Buck.