Supreme Court Denies Review in Texas Case Where State Relied on Defendant's Race to Obtain Death SentenceNovember 10, 2011

The United States Supreme Court, over a forceful dissent, this week refused to review the case of Texas death row prisoner Duane Buck, leaving intact a death sentence marred by racial overtones and undermined by the misleading statements of Texas prosecutors.

At Mr. Buck's capital sentencing trial, an expert psychologist testified that because Mr. Buck is an African American, he is more likely to commit acts of violence in the future. (In Texas, to obtain a death sentence, the State has to prove beyond a reasonable doubt that there is a probability the defendant would commit violent criminal acts in the future.)

As Justice Sotomayor, joined by Justice Kagan in dissent from the denial of certiorari, pointed out, the prosecutor asked the expert "a question specifically designed to persuade the jury that Buck's race made him more dangerous and that, in part on this basis, he should be sentenced to death."

The jury found that Mr. Buck would be a future danger, and he was sentenced to death.

In 2000, while Mr. Buck's case was on appeal in state court, the United States Supreme Court granted review in Saldano v. Texas, where the same psychologist had testified during Mr. Saldano's sentencing trial that a person's race or ethnicity increases the likelihood of future dangerousness.

In Mr. Saldano's case, the State of Texas conceded that the death sentence had been obtained in violation of the law against using race as a factor in sentencing a person to death. The Texas attorney general identified six cases like Mr. Saldano's, where Texas prosecutors illegally relied on the defendant's race to persuade jurors to impose the death penalty, and promised those defendants would get a new sentencing hearing.

Mr. Buck's case was one of those six cases, but a new Texas Attorney General was in office by the time his case reached federal court. Unlike in the other five cases, the State contested that Mr. Buck was entitled to a new sentencing trial, and the lower courts refused to reverse his sentence.

The Court had earlier stayed Mr. Buck's September 15, 2011, execution date. Its refusal to grant review to address whether the law allows the government to rely on the defendant's race to obtain a death sentence permits Texas to seek another execution date for Mr. Buck.

The Root reports that "[p]rominent Texans -- lawyers (including one who prosecuted him), a former governor, members of the clergy, civil libertarians -- are asking the district attorney, Patricia Lykos, to delay setting an execution date and to schedule a new sentencing hearing for Buck. "The State of Texas cannot condone any form of racial discrimination in the courtroom," these leaders wrote to Lykos. "The use of race in sentencing poisons the legal process and breeds cynicism in the judiciary."