U.S. Supreme Court building
U.S. Supreme Court building (Photo: Diego M. Radzinschi / LEG)

A case now pending before the U.S. Supreme Court presents a disturbing question about racial discrimination in the imposition of the death penalty: Is it “extraordinary” to sentence a black man to death based on “expert” testimony — introduced by his own trial counsel — that he is more likely to be dangerous because he is black?

Due purely to the incompetence of his court-appointed lawyers, no court has ever fully considered the merits of Duane Buck’s argument that this ­racially charged testimony denied him a fair trial. The U.S. Court of Appeals for the Fifth Circuit nonetheless held that Buck’s circumstances were not sufficiently “extraordinary” to justify even considering his claim of racial discrimination.

The Supreme Court should review that decision and correct a major injustice.

Buck’s case is extraordinary by any measure. He was sentenced to death in Texas, where the death penalty requires a unanimous jury determination that the defendant will be dangerous in the future. Defense counsel knew that psychologist Dr. Walter Quijano believed that blacks are more likely to be dangerous. But, astonishingly, counsel retained him anyway and elicited that unfounded, racially discriminatory view in Buck’s own case. Quijano reiterated that “expert” view on cross-examination, and in closing the prosecution urged the jury to rely on Quijano’s testimony to find that Buck would pose a future danger. The jury sentenced Buck to death.

Buck received new court-appointed counsel for his state habeas petition. That counsel never raised the argument that Buck’s trial had been tainted by the racially discriminatory testimony on future dangerousness, or that Buck’s trial counsel had provided ineffective assistance by calling a witness who told the jury that blacks were more likely to be dangerous in the future.

PROCEDURALLY BARRED

After Buck filed his state habeas petition, the Texas attorney general conceded in another capital case that Quijano’s race-based testimony was unconstitutional. The attorney general’s office identified six more cases, including Buck’s, unconstitutionally tainted by Quijano’s “expert” testimony. The attorney general pledged that Texas would not object to resentencing in those six cases, and eventually all defendants except Buck were resentenced. But by the time Buck’s case reached federal court, the state had changed its mind; it successfully argued that review of Buck’s claim was procedurally barred because of his earlier lawyers’ failure to raise the issue.

In 2012, the Supreme Court held that claims like Buck’s can be reviewed in federal court if — as here — the incompetence of state habeas counsel prevented the defendant from raising a substantial claim in state court. And in 2013, the court made clear that this rule applies to Texas. Buck then asked the federal district court to reconsider his claim — something that requires a showing of “extraordinary circumstances.” Buck laid out everything that made his case extraordinary. But the district court nonetheless refused, again, to review the merits of his claim, concluding that his case was not extraordinary.

Buck sought leave to appeal from the Fifth Circuit — something that required him to show only that reasonable judges could debate whether the district court’s decision was correct. But the Fifth Circuit would not even permit Buck to appeal, concluding that Buck’s claim was “unremarkable.”

TWO DECADES WITHOUT A RULING

The upshot is that, nearly 20 years after he was sentenced to death, no court has ever ruled on Buck’s claim that his trial was tainted by testimony — elicited by his own lawyer — that he was more likely to be dangerous in the future because he was black. That raises several serious problems. First, and most critically, both the defense and the prosecution suggested to the jury that Buck was more deserving of death because of his race.

This is the rare case in which racial discrimination in the imposition of the death penalty was open and express. Such a sentence should not be permitted to stand, not only because it is profoundly unjust to Buck, but also because it calls the fundamental fairness of Texas’s death penalty scheme into question.

Second, this case demonstrates how the incompetence of court-appointed lawyers at the early stage of a case can forever bar review of even the most ­serious constitutional errors. That, too, is fundamentally unfair.

Finally, this case shows that some courts of appeals are applying far too harsh a standard in deciding whether a habeas petitioner should be permitted to appeal. There is no question that reasonable people — including reasonable judges — could conclude that Buck’s case is “extraordinary,” as two Fifth Circuit judges’ dissent from the denial of rehearing en banc demonstrates.

This case raises issues at the very heart of the current administration of the death penalty. Due to the incompetence of Buck’s trial counsel, his jury was told he was more worthy of death because he was black. Due to the incompetence of his state habeas counsel, the federal courts initially refused to consider the issue. And the door to the courthouse remains closed — even though the Supreme Court has made clear that claims like Buck’s should be reviewed — because the court below failed to acknowledge that Buck’s case could reasonably be viewed as extraordinary.

This case presents an unusual opportunity for the Supreme Court to set the lower courts straight on the proper standards for review of such claims and, in doing so, to correct a startling example of racial injustice.

A case now pending before the U.S. Supreme Court presents a disturbing question about racial discrimination in the imposition of the death penalty: Is it “extraordinary” to sentence a black man to death based on “expert” testimony — introduced by his own trial counsel — that he is more likely to be dangerous because he is black?

Due purely to the incompetence of his court-appointed lawyers, no court has ever fully considered the merits of Duane Buck’s argument that this ­racially charged testimony denied him a fair trial. The U.S. Court of Appeals for the Fifth Circuit nonetheless held that Buck’s circumstances were not sufficiently “extraordinary” to justify even considering his claim of racial discrimination.

The Supreme Court should review that decision and correct a major injustice.

Buck’s case is extraordinary by any measure. He was sentenced to death in Texas, where the death penalty requires a unanimous jury determination that the defendant will be dangerous in the future. Defense counsel knew that psychologist Dr. Walter Quijano believed that blacks are more likely to be dangerous. But, astonishingly, counsel retained him anyway and elicited that unfounded, racially discriminatory view in Buck’s own case. Quijano reiterated that “expert” view on cross-examination, and in closing the prosecution urged the jury to rely on Quijano’s testimony to find that Buck would pose a future danger. The jury sentenced Buck to death.

Buck received new court-appointed counsel for his state habeas petition. That counsel never raised the argument that Buck’s trial had been tainted by the racially discriminatory testimony on future dangerousness, or that Buck’s trial counsel had provided ineffective assistance by calling a witness who told the jury that blacks were more likely to be dangerous in the future.

PROCEDURALLY BARRED

After Buck filed his state habeas petition, the Texas attorney general conceded in another capital case that Quijano’s race-based testimony was unconstitutional. The attorney general’s office identified six more cases, including Buck’s, unconstitutionally tainted by Quijano’s “expert” testimony. The attorney general pledged that Texas would not object to resentencing in those six cases, and eventually all defendants except Buck were resentenced. But by the time Buck’s case reached federal court, the state had changed its mind; it successfully argued that review of Buck’s claim was procedurally barred because of his earlier lawyers’ failure to raise the issue.

In 2012, the Supreme Court held that claims like Buck’s can be reviewed in federal court if — as here — the incompetence of state habeas counsel prevented the defendant from raising a substantial claim in state court. And in 2013, the court made clear that this rule applies to Texas. Buck then asked the federal district court to reconsider his claim — something that requires a showing of “extraordinary circumstances.” Buck laid out everything that made his case extraordinary. But the district court nonetheless refused, again, to review the merits of his claim, concluding that his case was not extraordinary.

Buck sought leave to appeal from the Fifth Circuit — something that required him to show only that reasonable judges could debate whether the district court’s decision was correct. But the Fifth Circuit would not even permit Buck to appeal, concluding that Buck’s claim was “unremarkable.”

TWO DECADES WITHOUT A RULING

The upshot is that, nearly 20 years after he was sentenced to death, no court has ever ruled on Buck’s claim that his trial was tainted by testimony — elicited by his own lawyer — that he was more likely to be dangerous in the future because he was black. That raises several serious problems. First, and most critically, both the defense and the prosecution suggested to the jury that Buck was more deserving of death because of his race.

This is the rare case in which racial discrimination in the imposition of the death penalty was open and express. Such a sentence should not be permitted to stand, not only because it is profoundly unjust to Buck, but also because it calls the fundamental fairness of Texas’s death penalty scheme into question.

Second, this case demonstrates how the incompetence of court-appointed lawyers at the early stage of a case can forever bar review of even the most ­serious constitutional errors. That, too, is fundamentally unfair.

Finally, this case shows that some courts of appeals are applying far too harsh a standard in deciding whether a habeas petitioner should be permitted to appeal. There is no question that reasonable people — including reasonable judges — could conclude that Buck’s case is “extraordinary,” as two Fifth Circuit judges’ dissent from the denial of rehearing en banc demonstrates.

This case raises issues at the very heart of the current administration of the death penalty. Due to the incompetence of Buck’s trial counsel, his jury was told he was more worthy of death because he was black. Due to the incompetence of his state habeas counsel, the federal courts initially refused to consider the issue. And the door to the courthouse remains closed — even though the Supreme Court has made clear that claims like Buck’s should be reviewed — because the court below failed to acknowledge that Buck’s case could reasonably be viewed as extraordinary.

This case presents an unusual opportunity for the Supreme Court to set the lower courts straight on the proper standards for review of such claims and, in doing so, to correct a startling example of racial injustice.