The U.S. Supreme Court is going to be looking hard at capital punishment next term, and two Texas cases are going to be at the center of it all. On Monday the High Court agreed to hear two cases, one centered around how race was used in sentencing Duane Buck, and one focused on how intellectual disability standards were used to give Bobby Moore the death penalty.
Should a court be able to sentence a man to death based on his skin color? That's the question at the heart of the Duane Buck case, which has spent years bouncing through the court system. Buck was sentenced to death by lethal injection by a Harris County jury in 1997 for the murders of his ex-girlfriend, Debra Gardner, and the man who was with her, Kenneth Butler. He also shot his stepsister, Phyllis Taylor, but Taylor survived. Two witnesses identified Buck as the shooter, according to the Fifth Circuit ruling issued last year. Buck laughed during and after the arrest and stated to one officer that Gardner "got what she deserved.”
The big problem with Buck's case has never been a question of Buck's guilt, but why he was sentenced to death. His small fleet of lawyers has never claimed Buck didn't commit the murders, but they have contended for years that Buck got the death penalty because he's black.
During Buck's murder trial, psychologist Walter Quijano testified that Buck was more of a danger to society because he is African American. Quijano had actually been called by Buck's lawyer, but the prosecutor cross-examined the psychologist.
“You have determined that the sex factor, that a male is more violent than a female because that’s just the way it is, and that the race factor, black, increases the future dangerousness for various complicated reasons, is that correct?” the prosecutor asked, according to court records.
“Yes,” Quijano said.
A few years after Buck was convicted, Quijano was cited by then-Texas Attorney General John Cornyn for giving racially influenced testimony to juries. Cornyn, now a U.S. senator, identified seven cases that needed to be reviewed for sentencing, and Buck's was one of them. All of the other cases have been allowed new sentencing hearings, but Buck's has been denied. In 2009, the Fifth Circuit concluded Buck’s lawyer was responsible for the introduction of Quijano’s "race-as-dangerousness" testimony.
Despite this, Buck was scheduled for execution in September 2011, but the Supreme Court stepped in and issued a stay of execution until the justices could review his case. Ultimately the Supremes declined to actually hear the case, although Justices Elena Kagan and Sonia Sotomayor dissented on the decision, but that was the end of the Supreme Court's involvement.
From there, Buck's case got kicked back to the Texas Court of Criminal Appeals, which voted 6-3 in 2013 not to allow Buck a new sentencing hearing. His lawyers immediately went back to bat with a request for relief that was rejected by the district court, a decision that was then upheld by the Fifth Circuit Court of Appeals last year. (The Fifth has looked at Buck's case three times so far.)
And so, after exhausting all other avenues, Buck's lawyers filed a petition for a writ of certiorari with the Supreme Court, putting the question of whether justice is being served if we as a nation allow a man to be sentenced to death partially based on the color of his skin.
There are many reasons for concern over this case, despite the accepted fact that Buck committed the crimes for which he is slated to be executed. For one thing, it seems that Buck's chance of avoiding the death penalty would have been greater if he'd been white. A study commissioned by Buck's lawyers found that between 1992 and 1999, Harris County prosecutors were three times more likely to ask for the death penalty for African Americans than they were for whites who had committed similar crimes.
And then there's the general question of race and how it effects sentencing. Tellingly, Harris County hasn't sentenced a white person to death since 2004. That makes the circumstances of Buck's case and the possibility that he still may ultimately be executed for the wrong reasons all the more troubling.
“It is impossible to take race out of the death penalty because that’s what it’s for,” defense attorney Danalynn Recer said at an American Bar Association conference in Austin, Texas, last month, according to the Marshall Project. “We spare the people that we identify with.”
The Supreme Court has already ruled that statistical sentencing arguments can't be used to tackle racial issues with the death penalty. This time, Buck's lawyers argued that Buck deserves a new trial entirely, contending that his "trial counsel was constitutionally ineffective" because the defense lawyer was the one who put Quijano on the stand in the first place, according to the 133-page petition.
The Supremes also agreed to hear the case of Texas death row inmate Bobby Moore. In 1980 Moore was convicted and sentenced to death for shooting 72-year-old Houston supermarket clerk James McCarble during a robbery. Moore, now 56, has been on death row for more than 35 years.
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Moore's lawyers argued a lower court in Texas had found Moore was "intellectually disabled and constitutionally ineligible" for the death penalty, but the Texas Court of Criminal Appeals reversed this decision. The appeals court ruled that a 23-year-old standard applied instead and found that, by those standards, Moore was not intellectually disabled.
Ultimately, the Supreme Court has agreed to look at the question of intellectual disability in Moore's case. (His lawyers had also asked the court to dig into whether executing an inmate like Moore more than 35 years after he was actually sentenced to death constitutes cruel and unusual punishment. The Supreme Court initially agreed to look at this question as well, and then revised its orders a few hours later on Monday, dodging this question for now.)
The two cases will likely be heard sometime next term, and by then there will (hopefully) be a new justice on the court to replace Justice Antonin Scalia, who died in February. Maybe with a new voice on the bench, the Supremes will be more open to really digging into this issue, but maybe not. Either way, they've granted the writs, so they're going to hear the cases.
"We are hopeful that the Supreme Court will correct this egregious error, and that Texas will acknowledge Mr. Buck's right to a new sentencing hearing free of racial bias," Buck's attorneys say in an issued statement. "Justice can only be served in this extraordinary case of racial bias by a new sentencing hearing free from inflammatory, inaccurate stereotypes."