Supreme Court Hears Texas Death Penalty Case Tainted by Racial Bias


The United States Supreme Court heard oral arguments today in the case of Duane Buck, who was sentenced to death in Texas after his own lawyers presented evidence that he was more likely to commit criminal acts of violence in the future because he is Black.

Duane Buck was charged with capital murder in Houston, Texas, in 1997. He was too poor to hire a lawyer, so the judge appointed two defense lawyers, one of whom is best known for losing capital cases.

Under Texas law, the death penalty can be imposed only if every juror agrees that the defendant is likely to be dangerous in the future. In Mr. Buck’s case, prosecutors lacked strong evidence to prove future dangerousness, until Mr. Buck’s appointed lawyers called an expert witness who testified that Mr. Buck was more likely to be dangerous because he is Black. The prosecutor emphasized this false and pernicious racial stereotype during his cross-examination and in asking the jury to impose the death penalty. Jurors seemed conflicted about the appropriate sentence, but after reviewing the expert’s report, they sentenced Mr. Buck to death.

The same expert testimony was presented in six other cases, and in 2000, the State of Texas agreed that new sentencing trials must be held in all seven cases. But it reversed course in Mr. Buck’s case, arguing that his death sentence should stand because the “race-as-dangerousness” testimony was introduced by defense counsel rather than by prosecutors.

That argument seemed to fall flat at the Court yesterday. “It would seem more prejudicial when the defendant’s own lawyer brings it up,” Justice Elena Kagan told Texas Solicitor General Scott Keller. “The jury would probaby think, then it must be true.”

Mr. Buck is asking the Court to reverse a lower court’s refusal to allow him to challenge his lawyer’s ineffectiveness on appeal. Conservative Justice Samuel Alito said that “what occurred at the penalty phase of this trial is indefensible,” and on the opposite side of the ideological divide, Justice Ruth Bader Ginsburg asked, “Doesn’t it show how abysmal his counsel was?”

Justice Stephen Breyer, who recently wrote that the unreliability and arbitrariness that infect death penalty cases likely render capital punishment unconstitutional, seemed to suggest that this case proves his point. Questioning Texas’s refusal to give Mr. Buck the same relief as the other six defendants, he said, “It seems to me it proves the arbitrariness of what’s going on.”

Indeed, at the time of Mr. Buck’s trial, the Harris County district attorney’s office was three times more likely to seek the death penalty against African American defendants than against similarly situated whites, and Harris County juries were twice as likely to impose death sentences on Black defendants.

Arguing on behalf of Mr. Buck, NAACP Legal Defense Fund Litigation Director Christina Swarns underscored that the expert’s racist testimony not only prejudiced Mr. Buck at sentencing, but also jeopardized the integrity of the courts.

“This Court has long recognized that the integrity of the courts requires unceasing efforts to eradicate racial prejudice from our criminal justice system,” she reminded the justices. “That commitment is as urgent today as at any time in our nation’s history.”

Observers reported that the Court appeared to be poised to allow Mr. Buck’s appeal.

The Justices all agreed that, as Justice Alito put it, “what occurred at the penalty phase of this trial is indefensible.”