By Kaitlyn Burns, Staff Writer
“It’s a sad commentary that minorities, Hispanics and black people, are over represented in the [c]riminal [j]ustice system.” In a country now steeped in controversy over the systemic violence and discriminatory practices against racial minorities, uttering this statement in open court would normally be greeted as music to the ears of any civil rights group aimed at promoting racial equality.
Ironically, however, it is this very phrase that opened the door for a criminal prosecutor to persuade a Texas state court jury to sentence Duane Buck, a black man, to death. His sentence was on the basis that his race made him an increased risk of danger to society — a characteristic that the jury needed to find that the criminal defendant possessed before it could issue a capital sentence in Texas.
On Oct. 5, 2016, the United States Supreme Court heard oral arguments on whether to grant or deny Buck a certificate of appealability (COA), so that he may appeal to obtain a re-sentencing hearing. This would be in the hopes of overturning the capital sentence a Texas jury doled out to him based on testimony offered by his own expert witness that his race and gender made him an increased risk of future danger.
While the Supreme Court only recently heard arguments on Buck’s appeal, this is not the first time that Buck’s case has come before the justices. This is largely because Buck’s case, from his original sentencing hearing in 1997 until his most recent appeal, has been replete with substantive and procedural deficiencies.
In 1997, Buck’s defense counsel, Jerry Guerinot, elicited the above response from psychologist Dr. Walter Quijano in an attempt to proffer mitigating evidence to the jury and prevent Buck from receiving a capital sentence. This line of questioning, however, backfired. It allowed the prosecution to ask Quijano about Buck’s race and gender being factors indicative of dangerousness on cross-examination.
In fact, Guerinot allowed the prosecution to ask the following question: “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?” Quijano responded affirmatively.
Then, despite this, Guerinot allowed Quijano’s expert report — which repeated his sentiment that race and gender influence dangerousness — to be entered into evidence, despite it being excludable hearsay. Because Guerinot allowed for this evidence to be received by the jury, the jury sentenced Buck to death for the murder of his girlfriend and her friend; the Texas Court of Criminal Appeals affirmed.
[pullquote]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?[/pullquote]
While presenting arguments in a similar case — three years after Buck received his capital sentence — the Texas Attorney General admitted to the Supreme Court that the state erred in calling Quijano as a witness to testify that a defendant’s race increased the likelihood of future dangerousness. The case was Saldano v. Texas. SCOTUS vacated the defendant’s capital sentence in that case and remanded to the Texas Court of Criminal Appeals to consider re-sentencing the defendant based on the admitted error.
Based on the Saldano ruling, Buck filed a habeas corpus petition with the Texas Court of Criminal Appeals. But he failed to allege the one claim that would get him a re-sentencing hearing: an ineffective assistance of counsel (IAC) claim alleging that Guerinot failed to present mitigating evidence in calling Quijano to testify.
Before the court ruled on Buck’s first petition, he filed a second habeas petition that alleged IAC. Because Buck failed to bring the ineffective assistance of counsel in his original petition, however, the state court and subsequent federal courts ruled that Buck procedurally defaulted on the IAC claim and denied Buck relief.
As a result, Texas set Buck’s execution date for Sept. 15, 2011. Buck, in a last attempt to save his life, moved for relief from the Supreme Court’s previous judgment to deny habeas relief under Federal Rule of Civil Procedure 60(b) in federal district court. He then applied for a COA to the Fifth Circuit when his Rule 60(b) motion was denied.
Taking notice of the fact that Buck’s case had been before both state and federal trial and appellate courts more than once in 14 years, the Supreme Court granted certiorari to Buck’s case in June 2016. It would decide once and for all whether Buck was entitled to COA relief, despite procedurally defaulting on his IAC claim. Given Buck’s track record with appeals, it did not seem likely that the Supreme Court would be amenable to granting Buck’s COA request.
Yet, in a surprising turn of events, all of the justices seemed to be in agreement during oral arguments on Oct. 5, 2016, that Buck’s was entitled to COA relief. Justice Samuel A. Alito, Jr. — one of the most conservative justices on criminal justice issues and the same justice who wrote the majority opinion denying Buck habeas relief in 2011 — made a statement declaring, “What occurred at the penalty phase of trial is indefensible.”
This statement, coupled with progressive Justice Elena Kagan’s sentiment that the Fifth Circuit improperly denied COA to offenders facing capital sentences, suggests that SCOTUS may take a small step toward correcting bias within the criminal justice system. It suggests that Buck may get a re-sentencing hearing barring evidence of a correlation between race, gender, and increased dangerousness.
While a ruling granting Buck a COA may do little to improve his chances of getting off of death row, given the heinous nature of the crimes he committed, this ruling is significant. It would be the first time since Saldano that the Supreme Court took a stand in declaring that it is unconstitutional to use race and gender as factors for assessing future dangerousness during sentencing hearings.
Given the current fragility of U.S. race relations, the Supreme Court has a chance to either quell tensions or exacerbate the fire. Let us hope that it chooses to do the former by affirming its Saldano opinion and granting Buck a COA in the coming months.
 Buck v. Thaler, 565 U.S. 1022, 1023 (2011) (citing 28 Tr. 111 (May 6, 1997)) (denying certiorari review).
 See e.g., Andrea Marsh et al., Why Motive Matters: Designing Effective Policy Responses to Modern Debtors’ Prisons, 34 Yale L. & Pol’y Rev. 93, 93-95 (2015) (explaining that the protests in Ferguson, Missouri stemmed from discriminatory racial practices implemented by municipal police and courts); Aimee Picchi, Economic Protests that can Turn Protests into Riots, CBS News (Sept. 27, 2016), http://www.cbsnews.com/news/economic-forces-that-can-turn-protests-into-riots/ (describing the recent race riots happening in the United States due to use of violence and discriminatory practices against racial minorities).
 Buck v. Thaler, 565 U.S. 1022, 1022-1025 (2011); see also Adam Liptak, Justices Seem Ready to Find Bias in Trial of Black Man on Texas Death Row, n.y. times (Oct. 5, 2016), http://www.nytimes.com/2016/10/06/us/politics/supreme-court-death-penalty-texas.html?smid=pl-share&_r=0.
 Robert Barnes, Supreme Court Hears Arguments in Two Cases Raising Issues of Discrimination, Unfair Treatment, Wash. Post (Oct. 5, 2016), https://www.washingtonpost.com/politics/courts_law/supreme-court-hears-arguments-in-two-cases-raising-issues-of-discrimination-unfair-treatment/2016/10/05/bf47a150-8b02-11e6-b24f-a7f89eb68887_story.html.
 Buck v. Thaler, 565 U.S. 1022, 1023 (2011).
 Buck v. Stephens, 623 F. App’x 668, 669 (5th Cir. 2015).
 Id. at 670.
 Saldano v. Texas, 530 U.S. 1212 (2000).
 Buck v. Stephens, 623 F. App’x 668, 670 (5th Cir. 2015).
 Id. at 670-74.
 Barnes at supra note 4.