Supreme Court Hears Argument About Racial Bias in Death Penalty Case

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Analysis Law and Policy

Supreme Court Hears Argument About Racial Bias in Death Penalty Case

Imani Gandy

During trial more than 20 years ago, Duane Buck’s own attorney, Jerry Guerinot, inexplicably put a defense expert psychologist on the stand who testified that Buck was more likely to commit future acts of violence because he is Black.

For Duane Buck, simply being Black meant an automatic death sentence in Texas’ court system, according to Buck’s attorney Christina Swarns, arguing on behalf of her client before the U.S. Supreme Court early on Wednesday.

In Texas, a person is subject to the death penalty only if they are dangerous and likely to commit future criminal acts of violence. That means before a jury in Texas can sentence a person to death, that jury must be certain beyond a reasonable doubt that “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.”

But during trial more than 20 years ago, Buck’s own attorney, Jerry Guerinot (who lost every one of the 36 death penalty cases that he tried during his career) inexplicably put a defense expert psychologist on the stand who testified that Buck was more likely to commit future acts of violence because he is Black.

This testimony was so directly contrary to Buck’s interests, according to his lawyers at the NAACP Legal Defense and Educational Fund (LDF), that no competent defense attorney would have introduced it—a violation of the constitutional rights to effective counsel and to equal protection.

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Duane Buck does not contest his guilt. On July 30, 1995, the then-33-year-old Buck, brandishing a rifle and a shotgun, kicked open the front door at his ex-girlfriend Debra Gardner’s house, where Gardner, her new boyfriend Kenneth Butler, Butler’s brother Ebenezer, and Buck’s sister Phyllis Taylor were gathered, according to court documents.

After firing at Ebenezer Butler, Buck walked up to his sister Phyllis Taylor, pressed the muzzle of the rifle to her chest, and fired. Taylor would survive her injuries; Buck’s ex-girlfriend and her new boyfriend, however, would not. Buck shot and killed Kenneth Butler in the hallway of Gardner’s house. Gardner fled to the street to escape, but Buck found, shot, and killed her. Her two children watched her die.

During the sentencing phase of Buck’s trial, his counsel, Guerinot, put Dr. Walter Quijano on the stand as a defense expert. He did this despite the fact that he had already received a copy of Quijano’s expert report “clearly stating that Buck’s race made him statistically more likely to be a future danger,” according to court documents.

Ultimately, Quijano concluded both in his report and on the stand that Buck himself was unlikely to commit future acts of violence, but the horse was out of the barn.

During cross-examination, the prosecutor asked Quijano about his opinions regarding the race and sex of the defendant, which lead to the following exchange:

Q: 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?

A: Yes

Quijano’s race-as-dangerousness opinion “validated a uniquely pernicious stereotype” that Black men are violent criminals, which has persisted in this country since its inception, according to an amicus brief filed by the Constitutional Accountability Center (CAC).

CAC’s brief traces the stereotype of the violent Black man, from English colonizers referring to Africans as “savages” and “beasts;” to pro-slavery propaganda contrasting “the savage Negro of Africa and the ‘civilized’ black slave;” to popular culture throughout the years portraying Black people as “primitive, violent criminals;” to the news media’s complicity in depicting life in the United States as being inherently dangerous and threatening, thanks to Black criminals.

Stereotypes about the criminality of Black people have always existed in this country, and studies demonstrate that these pervasive stereotypes about Black people—that we are “construed as violent, threatening, criminal, unintelligent, uneducated, lazy, poor, athletic, and musical”—contribute to implicit racial biases.

Allowing that stereotype to be introduced into trial rendered Bucks’ defense so constitutionally deficient that it “powerfully undermines confidence in Mr. Buck’s sentence of death,” according to documents Buck’s lawyers filed with the Supreme Court.

At the sentencing phase of the trial, the central issue the jury had to decide was whether Buck was likely to be a future danger. Indeed, when they were deliberating, the jury asked for a copy of Quijano’s expert report containing his opinion that Buck was more likely to commit criminal acts of violence because he is Black.

“No competent defense counsel would have presented Dr. Quijano’s race-as-dangerousness opinion to the jury,” Buck’s attorneys argued in court documents.

“As any competent counsel would have recognized, it was contrary to Mr. Buck’s interests to present an expert opinion that Mr. Buck possesses an immutable characteristic that renders him prone to violence,” the attorneys continued.

“The center of Mr. Buck’s claim has always been the introduction of racial discrimination that undermines the confidence in, not only his own death sentence, but the integrity of the courts well,” argued Swarns, who is the litigation director of LDF.

After initially wrestling with a procedural issue concerning the appellate process, all of the justices, conservative and liberal alike, seemed to agree with Swarns at oral arguments.

“This is a very—a very unusual case, and what occurred at the penalty phase of this trial is indefensible,” Alito pointed out.

Scott Keller, arguing for the State of Texas, attempted to make hay out of the fact that the prosecution did not inject race into the trial; the defense did.

But Justice Ruth Bader Ginsburg interrupted and asked whether that simple fact demonstrates that Buck’s counsel was “abysmal.”

“This evidence, everyone agrees, should not have—not have come in. And—and what—what counsel would put that kind of evidence before a jury? What competent counsel would put that evidence before a jury?” Ginsburg asked.

Justice Elena Kagan pointed out that injecting race into the proceedings is more prejudicial when defense attorneys do it. “When the defendant’s own lawyer introduces this, the jury is going to say, ‘Well, it must be true. Even the defendant’s lawyer thinks that this is true. So, you know, who am I to—to argue with that,’” Kagan noted.

“It seems wildly more prejudicial to me when the defense attorney introduces it,” she concluded.

As the CAC put it in its amicus brief, the stereotypes present in Quijano’s opinion contribute to implicit biases that then inform the ways in which juries judge criminal defendants: “Individuals need not harbor ill will or consciously subscribe to racist attitudes in order for their impressions to be affected by entrenched racial stereotypes.”

“Against this backdrop, Dr. Quijano’s testimony was distinctly prejudicial: not only did it dredge to the surface a powerful, latent racial stereotype, it gave jurors a license—indeed, an obligation—to consider it as they resolved the key question at Buck’s sentencing hearing, that is, his likelihood of future violence,” the CAC continued.

At a time when discussions about such stereotypes and how policing based on such stereotypes have caused tension between the police and communities of color, it is rather fortuitous that Buck’s case reached the Supreme Court when it did. On Tuesday night during the vice-presidential debate, for example, a discussion about police bias led Mike Pence to deny that police have implicit biases—a claim belied by the myriad studies that demonstrate the various ways in which implicit biases influence the ways in which we treat one another.

It is unclear how the Court will decide, but if the tenor of Wednesday’s arguments is any indication, Duane Buck can expect a unanimous ruling in his favor. And depending on who writes the majority opinion, the Court may spark a much-needed conversation about negative stereotypes of Black people. Imagine, for example, if Sonia Sotomayor is given an opportunity to expand her passionate dissent in Utah v. Strieff?

One can dream.