Supreme Court Takes on Race Bias in Texas Death Penalty Case

Just two weeks after overturning a black man’s death sentence because prosecutors kept black jurors off the all-white jury, the Supreme Court has agreed to review another major capital case involving racial bias.

Duane Buck was convicted of murder in 1997 and sentenced to death with the help of expert testimony that blacks are more likely to commit violence. 

At Duane Buck’s trial, his own defense lawyer called psychologist Walter Quijano as an expert witness. Quijano had a history of asserting that African Americans are more violent than whites. Knowing this, the prosecutor asked Quijano on cross-examination whether “the race factor, black, increases the future dangerousness” – to which Quijano answered, “Yes.”

“Future dangerousness” is one of three criteria for jurors to recommend the death penalty: 

• The crime has to be premeditated 
• The crime can't be committed in self-defense, and 
• The defendant has to represent a continuing threat to society.

Buck’s guilt isn’t in question. The question is whether a jury decided to execute him in part because of expert testimony establishing that he would be a continuing threat to society because he’s black.

The Court’s announcement that they will take this case comes just two weeks after their decision to overturn the death sentence of a Georgia man, Timothy Tyrone Foster, who was sentenced by an all-white jury after prosecutors took pains to eliminate all blacks from the jury pool.

“Collectively, [the Buck and Foster cases] demonstrate that racial bias remains an extraordinarily important issue in the administration of the death penalty,” said Robert Dunham, executive director of the Death Penalty Information Center. “Whatever can be said about advances that have been made over the years on questions of civil rights, it’s clear that when it comes to criminal justice and particularly the death penalty, the pernicious effects of race bias continue to pervade the system.”

In 2000, Texas Attorney General John Cornyn ordered Buck’s case and six others to be reviewed to make sure the death penalty wasn’t applied as a result of overtly racist testimony. In the end, however, Buck’s was the only one of the seven Texas didn’t reconsider, since it wasn’t a case of prosecutorial misconduct. After all, it was the defense lawyer who called the witness.

So the question now is whether Buck’s lawyer was incompetent. The Supreme Court will determine whether calling a notorious racist to the stand to defend a black man constitutes ineffective counsel. If so, the Court will send the case back to Texas to give Buck a fair hearing.

“If ultimately the death sentence is reversed based on the introduction of this kind of testimony,” said Christina Swarns of the NAACP Legal Defense Fund and lead counsel on Buck’s legal team, “we think it would provide important support for the integrity of the criminal justice system at a time when Americans throughout the country are deeply concerned about the role of race in criminal justice.”

Even one of the prosecutors that helped convict Buck has lobbied for a retrial based on Walter Quijano’s racist testimony.

Still, as much as this case seems to strike at the heart of some lightning-rod issues concerning the criminal justice system, it is not considered a “broad challenge” to the death penalty.

“That’s a technical term,” explains Shari Silberstein, executive director of Equal Justice USA, a nonprofit that advocates for the repeal of the death penalty. “The Supreme Court isn’t being asked to weigh in on whether the death penalty in theory is unconstitutional and therefore there can be no more death penalty in the United States. They’re considering specific aspects of how the death penalty is applied.”

Photo of Duane Buck via NAACP LDF.