Death Row Inmate’s Sentence Appeal Allowed After Expert Testified Race Makes Him More Likely to Offend Again

The U.S. Supreme Court ruled that testimony from a psychologist could have tainted convicted murderer Duane Buck's trial. 
The U.S. Supreme Court ruled that testimony from a psychologist could have tainted convicted murderer Duane Buck’s trial. 

By Christopher Zoukis

The U.S. Supreme Court decided Texas inmate Duane Buck can keep arguing for a new hearing on his death sentence, because at his original sentence hearing, a psychologist testified Buck, as an African-American, was more likely to commit a future violent crime.

At that time, Texas death sentence law required a jury to find that a convict posed a likely future danger to the community. At Buck’s hearing, an expert witness, psychologist Dr. Walter Quijano, opined there was only a “low” likelihood Buck would commit further violence if given a life sentence rather than executed, but added that statistics showed Buck’s race “increased the probability” he would commit another violent crime. Buck didn’t challenge the verdict, but attacked the sentence as tainted by the racial comments.

Defending the sentence, Texas argued that the facts of Buck’s case made it less likely racially-charged testimony would prejudice the case, as his crimes were particularly “horrific” (the 1995 double murder of his former girlfriend, gunned down in front of her young children, and her new boyfriend, plus the nonlethal shooting of his own stepsister).

The state also argued it couldn’t be blamed, since Buck’s own lawyer had offered the psychologist as a witness at the sentencing hearing. Besides, it was too late to raise the issue of ineffective counsel, which Buck’s lawyer hadn’t raised in the first post-conviction appeal.

Writing for a six-member majority in the Feb. 22 decision in Buck v. Davis, Chief Justice John Roberts found Buck entitled to have a lower court review the sentence, because he had shown ineffectiveness of counsel; Texas had already admitted error in allowing Dr. Quijano’s testimony about six other defendants, and given them new sentencing hearings, but refused to do so for Buck.

Roberts’ decision swept away the state’s objections, reversing prior decisions by a federal district court and a federal appeals court on numerous issues: what constitutes ineffective representation by counsel, the standard of review for challenging an earlier sentencing decision, and how an inmate can show “extraordinary circumstances” needed to challenge a sentence belatedly.

What mattered, in Roberts’ view, wasn’t which side introduced Quijano’s testimony, but the likelihood it could have affected one or more jurors’ views on the key issue of whether Buck would reoffend. His ruling gives Buck a renewed chance to try to persuade the lower court (which earlier rejected his appeal) to reopen the sentencing hearing.

In a harsh dissent, Justices Clarence Thomas and Samuel Alito said the majority opinion “bulldozes procedural obstacles and misapplies settled law” to justify the desired result, but takes comfort that the new decision, due to “highly unusual” facts, is likely to have scant precedential value.

It’s not the Court’s first set-to on Buck’s case. In 2011, in Buck v. Thaler, the high court passed up an earlier chance to hear a review petition from Buck, when four justices couldn’t be mustered to vote to take the case. Then, in unusual actions, Justices Sotomayor and Kagan issued a dissent from the decision not to hear the case, and Justices Alito, Scalia and Breyer published an explanation why they voted against hearing the case — saying Buck couldn’t challenge statements by his own witness and they agreed with lower court decisions.

Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at, and