WASHINGTON ― All Texas death-row prisoner Duane Buck wants is a piece of paper from a judge. If the Supreme Court agrees that he deserves it, the paper will let him show in court that he was sentenced to death because he is black.
The high court on Wednesday considered Buck’s case, a capital appeal that is striking for how technical it is, but also for how his lawyer failed miserably at avoiding a death sentence that one justice once said was “marred by racial overtones.”
The justices faced a choice on whether to devote the one-hour hearing to the technicalities surrounding the case or the deeper constitutional issue of ineffective assistance of counsel. And in the end, it seems as if they decided both were worth exploring to some extent.
Chief Justice John Roberts recognized Buck’s case was “unique” because, deep down, it’s really about what rules federal courts should follow when granting what is known as a certificate of appealability ― the piece of paper Buck seeks that will let him prove at a later stage whether his constitutional rights were violated.
And because the Supreme Court sets the rules for lower courts, Roberts appeared concerned that a sweeping ruling for Buck ― one that made much of the racial dynamics of his sentencing ― would open the floodgates to a slew of new cases and appeals from inmates such as Buck.
“This would be an odd platform to issue general rules,” Roberts remarked, and then suggested that maybe the court’s ruling should be limited to the piece-of-paper question: “Should our decision be just that?”
For better or for worse, Buck v. Davis, as the case is known, has everything and nothing to do with race. Nearly two decades ago, Buck was convicted for murdering his ex-girlfriend and another man in front of the woman’s own children ― and Texas, as it often does, sought the death penalty for him.
“The bitch deserved what she got,” Buck said at the crime scene, according to a police officer’s courtroom testimony.
Under Texas law, jurors in capital cases are required to determine the “future dangerousness” of a defendant before they can recommend a death sentence. That’s usually a burden prosecutors have to carry. But in Buck’s case, his own defense attorney presented an expert report that noted that being black was a “statistical factor” that meant he might pose a future danger to society.
“It’s a sad commentary that minorities, Hispanics and black people are overrepresented in the criminal justice system.”
When asked to testify and expand on his findings, the expert added, “It’s a sad commentary that minorities, Hispanics and black people are overrepresented in the criminal justice system.”
But then a Texas prosecutor pressed the point on cross-examination, asking the expert whether he thought “the race factor, black, increases the future dangerousness for various complicated reasons.” The expert said yes, and later, the jury recommended a death sentence for Buck.
Justice Samuel Alito conceded these facts where “indefensible” and “bizarre,” but kept the focus where Roberts did: the problem of “opening the doors” to a wave of state claims from defendants complaining that they were represented poorly by their lawyers.
Buck’s lawyer before the Supreme Court, Christina Swarns, tried hard to bring the focus to Buck’s “extraordinary” case. She noted that the “explicit appeal to racial bias” in his sentencing is intimately tied to “the pivotal question of whether or not Mr. Buck would be executed.”
In other words, once the jury heard the testimony about Buck’s race, all bets were off against him. “This evidence put the thumb heavily on the death scale, and particularly as it fit into the evidence in this case,” she said.
When it was time for Texas to defend its position, Justice Sonia Sotomayor ― who has staked out a special place on the court on race issues ― drove home that even the slightest influence of race could have swayed at least one juror not to vote for the death penalty.
“Is it a reasonable possibility that one juror ... could have been convinced to exercise mercy if race wasn’t used?” Sotomayor asked.
There’s an extra wrinkle in the Buck case: Texas itself has recognized that using race to support a death sentence is constitutionally problematic and has reversed course in six other cases that are similar to Buck’s. But according to Swarns, the state has yet to come clean with her client.
“As a result, Mr. Buck is the only Texas prisoner to face execution pursuant to a death sentence that Texas itself has acknowledged is compromised by racial bias that undermines confidence in the criminal justice system,” Swarns said early in the hearing.
A recent critic of the death penalty writ large, Justice Stephen Breyer seemed troubled by Texas’ about-face. “It seems to me it proves the arbitrariness of what’s going on,” he said, in a nod to his own previously articulated views on why the constitutionality of the death penalty should be reconsidered.
Buck v. Davis is not an avenue to consider any of those larger questions, or even Buck’s own claim that his lawyer did not represent him effectively. But it may at least give him the reprieve he seeks: a chance to tell a lower court that he deserved a good lawyer all along, regardless of how heinous his crime was.