The Supreme Court heard arguments Wednesday in the case of Duane Buck, a convicted Texas murderer sentenced to die after a psychologist testified that he was more likely to commit violent crimes in the future because he is black.
Buck shot and killed his ex-girlfriend in front of her three children while she begged for her life. He killed the man he thought she was sleeping with and he shot his own stepsister, Phyllis Taylor, who survived the horrific night.
Taylor was at the Supreme Court on Wednesday, supporting Buck's attempt to win a new sentencing hearing. "I pray that it be converted to life," she said, "because I know who he is, and on that particular day, he was under the influence of drugs."
To sentence a defendant to death under Texas law, a jury must unanimously agree that the defendant poses a future danger. In this case, Buck's own lawyer hired psychologist Walter Quijano, who testified that Buck was generally not violent, but that he was more likely to commit violent acts in the future because he is black.
When a similar case involving the same psychologist went to the Supreme Court in 2000, Texas conceded error. It also found six more cases in which Quijano linked race to violence, and it pledged to allow all seven defendants to bring appeals for new sentencing hearings. The state delivered on that promise, except in Buck's case.
Inside the Supreme Court chamber Wednesday, there seemed little doubt that would change. The question was how.
Would the justices just say that the 5th Circuit Court of Appeals was wrong to deny Buck a sentencing appeal, a decision that would only affect Buck? Or would they rule that the Fifth Circuit is an outlier in death penalty appeals and that its whole approach is wrong?
Representing Buck, Christina Swarns of the NAACP Legal Defense and Education Fund, noted that the jury deliberated for two days on Buck's sentence and sent out four notes. One of the notes asked about the possibility of life without parole — a question the trial judge never answered. Another requested the report that the defense psychologist had filed, which directly correlated race to a defendant's likelihood of future violence.
Justice Samuel Alito called the introduction of race as a predictor of violence "indefensible," but he was also the only justice who voiced skepticism about granting what's called a certificate of appealability for Buck. The Supreme Court has ruled in the past that these certificates should be granted in any case where reasonable jurists could find the legal issue debatable.
In the past, the Supreme Court has repeatedly rebuked the 5th Circuit for its refusal to grant these certificates in capital cases. Buck's lawyers compiled statistics showing that in the three federal courts of appeal that cover the southern states, the 5th Circuit refused to grant certificates of appeal in 60 percent of cases, versus a 6 percent refusal rate in the neighboring 11th Circuit, and no refusals in the 4th.
When Texas Solicitor General Scott Keller rose to argue for the state, the justices took issue with almost every facet of his argument.
Over and over they noted that Texas had initially promised to allow a sentencing appeal to go forward in all seven of the cases where psychologist Quijano had linked race to violence. Why, they wanted to know, did the state change its mind in Buck's case?
Chief Justice John Roberts pointed out that the facts in the other cases were "similarly heinous." Driving the point home, Justice Sotomayor noted that in one of the other cases, a man poured gasoline on his victim, lit it, and watched her die.
The state's lawyer replied that Buck's case differed from the other cases because the defense lawyer, not the prosecutor, elicited the racial testimony.
Justice Ruth Bader Ginsburg questioned the significance of that distinction. If Buck's own counsel introduced the testimony, she asked, doesn't that show how "abysmal" his lawyer was?
Justice Elena Kagan added that "it seems wildly more prejudicial when the defense attorney introduces" testimony unfavorable to the defendant. Jurors discount similar evidence introduced by a prosecutor, she explained, because they realize the prosecution "has an interest" in getting the sentence it wants. This dynamic, she said, is directly relevant to Buck's claim that he was denied effective legal representation, a claim that no court has ever heard in his case.
Turning to the question of whether the 5th Circuit is using the wrong standard to certify appeals, Justice Kagan noted that the 5th Circuit denies certification ten times more often than the adjoining 11th Circuit. It does suggest, she said, that one of these two circuits is doing something wrong.
Whether the court will go that far, however, was not clear.
Correction: October 6, 2016 12:00 am — A previous version of this story incorrectly gave Texas Solicitor General Scott Keller's first name as Bill.