Nineteen years ago, Duane Buck was sitting in a Houston courtroom, on trial for shooting and killing his ex-girlfriend and one of her friends, when a psychologist testified that he was more dangerous than he might otherwise have been because he was black. Armed with this “expert” testimony, the jury sentenced him to die.
Now, after almost two decades of appeals and legal wrangling, the Supreme Court’s eight justices will hear oral arguments on Wednesday about whether Buck should be allowed to appeal his conviction and get the chance to have his case retried.
Buck’s case comes at a moment when America is more fully confronting the pernicious role race plays in its criminal justice system—and racism in the courtroom doesn’t get much more explicit than this.
“He was basically saying because you’re black, you need to die,” Buck later told a documentary filmmaker. “My lawyer didn’t say anything and nobody else, you know, the prosecutor or the judge, nobody did. It was like an everyday thing in the courts.”
Here are some answers about the case and its implications.
Someone really said Buck was more dangerous because he was black?
During Buck’s trial in May 1997, his lawyer called an “expert” psychologist named Walter Quijano to testify. Quijano said that black and Latino people were “over-represented in the criminal justice system.” During cross-examination, the prosecutor asked Quijano if “the race factor, black, increases the future dangerousness for various complicated reasons.” Quijano answered yes. Buck’s lawyer didn’t object or do anything.
During closing arguments, the prosecutor cited Quijano’s testimony, stressing that Buck’s race made him more dangerous. The jury wound up sentencing him to death.
Whether Buck shot and killed two people—his ex-girlfriend Debra Gardner and her friend Kenneth Butler—was never really at issue in the case. But Texas law requires a jury to find that a defendant will be a danger to the public in the future in order for them to be sentenced to death. That’s why this testimony was so critical.
This wasn’t the only time Quijano testified that black and Latino people are more dangerous. He gave a version of this testimony in six different Texas death penalty trials.
In 2000, then-Attorney General John Cornyn—who’s now the state’s senior U.S. Senator—admitted that the psychologist’s testimony was “inappropriate.” In all of the five other cases, prosecutors allowed new sentencing trials to go forward. But they didn’t do so in Buck’s case, because, they argue, it was Buck’s own lawyer who called Quijano to testify.
Isn’t that obviously racist? Why is this just getting to the Supreme Court now?
Buck’s case actually reached the Supreme Court once before, in 2011, when the justices blocked his execution from going forward just 90 minutes before it was scheduled to take place. But then, a few months later, they declined to hear his appeal of his conviction. At the time, defendants were not allowed to argue in federal appeals that their trial attorneys had failed them unless their appeals attorneys raised that argument in the state appeals process, which Buck’s initial appeals attorney did not do.
Justice Samuel Alito, joined by Justices Stephen Breyer and Antonin Scalia, wrote that although Quijano’s testimony was “bizarre and objectionable,” they were dismissing the case because Quijano had been called by Buck’s legal team. Justices Sonia Sotomayor and Elena Kagan dissented, saying they would have heard his case.
Since then, the Court has reached two important decisions—known as Martinez and Trevino—that essentially make it easier for inmates to appeal their convictions on the basis that they had a deficient lawyer. The rulings opened the door to a second chance for Buck, and he filed a new appeal in 2014. Even so, a district court and then the Fifth Circuit Court of Appeals both ruled against him again. His current legal team hopes that the Supreme Court will now be able to find that the testimony was “objectionable” enough to rule in his favor.
What happens if the Supreme Court rules in Buck’s favor?
If the justices decide that the testimony about Buck’s race significantly biased the jury against him, they could rule narrowly, returning the case to the Fifth Circuit Court of Appeals and saying that he should be granted the right to appeal the case on its own merits. They could also rule more broadly, perhaps expanding defendants’ chances to have their convictions overturned when they’re facing seriously biased testimony.
“There couldn’t be a better time for the Supreme Court to be hearing this case,” Kate Black, one of Buck’s lawyers, told me. “We’re in an important and broad national conversation about the fundamental and pernicious stereotype that black men are dangerous. How that affects the criminal justice system—whether it’s police on the street or a capital sentencing hearing in a courtroom—the Supreme Court has the opportunity to grapple with it in this case.”
What happens if it’s a four-four decision?
Because Senate Republicans have refused to consider the nomination of Merrick Garland, President Obama’s nominee to replace the late Justice Scalia, there are only eight justices on the Court. If they split four-four, the decision of the lower appeals court will stand. In this case, that’s the Fifth Circuit, which ruled against Buck, so he would lose his case. In either case, the Court will issue its decision within the next year.
Will the Court make any broader statement about the death penalty?
Buck’s case, while egregious, is not exactly unique. In Harris County, where he was sentenced, black defendants are more than twice as likely than white ones to receive the death penalty. There’s also a long history of people facing execution in the state lacking adequate legal counsel.
The constitutionality of the death penalty itself isn’t a question that’s been presented to the Court in this case. But Breyer and Justice Ruth Bader Ginsburg have both suggested in previous cases that they think capital punishment as it’s practiced today could be unconstitutional, in part because of the disparities in the race of the defendants and victims in capital cases. Buck’s situation could provide them with more evidence to support that theory.
Will Buck get to listen to his case go before the Court?
Buck is currently incarcerated at the Polunsky Unit in West Livingston, TX, the prison where all of the state’s death row inmates are housed. While the Supreme Court does not broadcast their oral arguments, Buck’s lawyers are planning to send him a transcript so he can see what happened. During the arguments, “I imagine he’ll be praying,” Black told me. “He’s a deeply religious man.” She noted that in 21 years of imprisonment, he hadn’t received a single disciplinary violation. In effect, the prediction that he would be a future danger wasn’t just racist but also false: Even though he’s lived two decades in near-solitary confinement, Buck has been a model inmate.