New York Times

Justices Seem Ready to Find Bias in Trial of Black Man

October 6, 2016

by Adam Liptak

WASHINGTON — In a decidedly lopsided argument in a death penalty case at the Supreme Court on Wednesday, the only dispute among the justices was whether they should rule narrowly or broadly in favor of Duane Buck, a Texas death row inmate whose trial was marred by testimony that black men are more dangerous than others.

All of the justices who spoke — Justice Clarence Thomas was, as usual, silent — agreed that the testimony, from an expert witness presented by the defense, was unacceptable.

“What occurred at the penalty phase of this trial is indefensible,” Justice Samuel A. Alito Jr. said. He later referred to “this bizarre expert testimony.”

Justice Ruth Bader Ginsburg called the defense lawyer’s decision to present the testimony “abysmal.”

Even Scott A. Keller, Texas’ solicitor general, sought to distance himself from the testimony. “We are not defending defense counsel’s actions,” he said. He argued instead that the testimony was minor in the scheme of things and that the inmate’s appeal was barred on procedural grounds.

Chief Justice John G. Roberts Jr. repeatedly asked Christina A. Swarns, a lawyer for Mr. Buck, how she preferred to win. She urged the court not to lose sight of what had happened to her client.

“This expert’s evidence not only prejudiced Mr. Buck at sentencing,” she said. “It also put the very integrity of the courts in jeopardy.”

Mr. Buck, who is black, was convicted of the 1995 murders of a former girlfriend and one of her friends while her young children watched. Texas law allows death sentences only if prosecutors can show the defendant poses a future danger to society.

During the trial’s sentencing phase, Mr. Buck’s lawyers presented testimony from a psychologist, Walter Quijano, who said that race was one of the factors associated with future dangerousness. “It’s a sad commentary that minorities, Hispanics and black people, are overrepresented in the criminal justice system,” Dr. Quijano testified.

A prosecutor followed up. “The race factor, black, increases the future dangerousness for various complicated reasons — is that correct?”

Dr. Quijano answered, “Yes.”

One of Mr. Buck’s trial lawyers, Jerry Guerinot, has a dismal record in death penalty cases, having represented 20 people sentenced to death in Texas, more than are awaiting execution in about half of the states that have the death penalty.

“One newspaper said, ‘If you want to ensure a death penalty, hire this lawyer,’” Justice Sotomayor said, referring to an article in The New York Times.

The narrow question in the case, Buck v. Stephens, No. 15-8049, was whether a federal appeals court should have allowed Mr. Buck to appeal a challenge to his death sentence based on the argument that his lawyer had been ineffective. But several of the justices seemed prepared to do more than decide that procedural question.

Some justices also seemed ready to use the case to chastise the United States Court of Appeals for the Fifth Circuit, in New Orleans, for its reluctance to grant so-called certificates of appealability, which are required in some challenges to death sentences.

Justice Elena Kagan, quoting from Mr. Buck’s brief, said the Fifth Circuit denies permission to appeal in capital cases about 60 percent of the time while the 11th Circuit, in Atlanta, denies permission about 6 percent of the time. “It does suggest,” she said, that “one of these two circuits is doing something wrong.”

But Chief Justice Roberts was wary. “It’s a unique case,” he said, “so this would be an odd platform to issue general rules.”

Mr. Keller, representing Texas, emphasized the brutality of Mr. Buck’s crime and the fact that it was the defense that had presented Dr. Quijano’s testimony.

But Justice Kagan said the fact that the testimony was presented by Mr. Buck’s lawyer only made things worse. “When the defendant’s own lawyer introduces this,” she said, “the jury is going to say: ‘Well, it must be true. Even the defendant’s lawyer thinks that this is true.’”

“It seems wildly more prejudicial to me when the defense attorney introduces it,” she said.

Mr. Keller also argued that Mr. Buck had not cleared the fairly low bar for obtaining permission to appeal, which requires an assessment of whether reasonable judges could disagree about whether he was entitled to relief.

Justice Sotomayor said the Fifth Circuit should have ruled that Mr. Buck could show at least that much. “Three state court judges, two of their colleagues on the Fifth Circuit, two justices of this court, have said or found Mr. Buck’s case debatable,” she said.

She was one of those justices. In 2011, she and Justice Kagan dissented from the Supreme Court’s decision to turn down an earlier appeal from Mr. Buck based on assertions of prosecutorial misconduct.